Stegnjaic v Stegnjaic [2019] NSWSC 1208

Supreme Court New South Wales

Medium Neutral Citation: Stegnjaic v Stegnjaic [2019] NSWSC 1208 Hearing dates: 20, 21 June 2019 Date of orders: 19 July 2019 Decision date: 15 July 2019 Jurisdiction: Equity - Family Provision List Before: Rein J Decision: 1. Plaintiff's application to remove the Defendant as executor is granted and the Defendant must account for any improper expenditure. 2. An administrator, Mr Terrence Hartmann, is to be appointed to administer the Estate. 3. The Plaintiff is entitled to a 50% share of the Estate pursuant to a family provision order under the Succession Act 2006 (NSW), as well as an ancillary order requiring the Estate properties to be sold and the proceeds distributed. Catchwords: SUCCESSION - Executors and administrators - Proceedings against executors and administrators – Application to remove the executor - Where the father's Will left 50% to each of his two sons, but the elder son (the Defendant), who was the sole executor, was given discretion under the Will to postpone distribution of the Estate indefinitely; where the younger son (the Plaintiff) sought to have the Defendant removed as executor and made to account for improper management of the Estate finances; where the Plaintiff sought to have the Estate distributed on the basis of the "rule" in Saunders v Vautier – Held: Defendant removed as executor and made to account for improper expenditure, but the rule in Saunders v Vautier does not apply to real property and, in any event, the beneficiaries (being the two brothers) were not in agreement in calling for a distribution of the trust property.

SUCCESSION - Family provision and Maintenance - Failure by testator to make sufficient provision for applicant – Where the alleged failure was not the percentage afforded to the applicant under the Will but, rather, the discretion given to the executor to postpone distribution of the Estate indefinitely – Held: applicant entitled to 50% of the Estate pursuant to a family provision order under the Succession Act 2006 (NSW), as well as an ancillary order requiring the Estate properties to be sold and the proceeds distributed. Legislation Cited: Perpetuities Act 1984 (NSW) Succession Act 2006 (NSW) Cases Cited: Bates v Messner (1967) 67 SR (NSW) 187 Beck v Henley [2014] NSWCA 201; (2014) 11 ASTLR 457 CPT Custodian Pty Ltd v Commissioner of State Revenue [2005] HCA 53; (2005) 224 CLR 98 Horton v Jones [1935] HCA 7; (1935) 53 CLR 475 Lemon v Mead [2017] WASCA 215; (2017) 53 WAR 76 Mavrideros v Mack [1998] NSWCA 286; (1998) 45 NSWLR 80 Official Receiver in Bankruptcy v Schultz [1990] HCA 45; (1990) 170 CLR 306 Re Estate of Colleen McCullough [2018] NSWSC 1126 Re Estate of Hodges (1988) 14 NSWLR 698 Saunders v Vautier (1841) Cr & Ph 240 Shorten v Shorten [No 2] [2003] NSWCA 60 Taylor v Farrugia [2009] NSWSC 801 Texts Cited: Geraint W. Thomas, Thomas on Powers (Sweet & Maxwell, 1998) Category: Principal judgment Parties: Sinisa Stegnjaic (Plaintiff) Milorad Stegnjaic (Defendant) Representation: Counsel: Mr J. Brown (Plaintiff) Dr J. O'Shea (Defendant)