AMANDA EVE v JOHN KALAITZIS [2025] SASC 41

Applicant: AMANDA EVE Counsel: MR E GUTHRIE - Solicitor: SEDSMAN LEGAL Respondent: JOHN KALAITZIS Counsel: MR J WHITE KC - Solicitor: TOLIS & CO LAWYERS Hearing Date/s: Considered on the papers File No/s: CIV-22-014013 B SUPREME COURT OF SOUTH AUSTRALIA (Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. EVE v KALAITZIS [2025] SASC 41 Decision of the Honourable Associate Justice Bochner 21 March 2025 SUCCESSION - ADMINISTRATION OF ESTATE PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - REPRESENTATIVE PARTY - PROCEEDINGS CONCERNING ADMINISTRATION OF ESTATES, TRUST PROPERTY OR STATUTORY OR DOCUMENTARY INTERPRETATION Appointment of representative party Uniform Civil Rules 2020 (SA); Supreme Court Civil Rules 1987; Supreme Court Civil Rules 2006 (SA), referred to. Hewitt v Gardner [2009] NSWSC 705; Bayside Council v Estate of Goodman [2019] NSWSC 530; Russo v Buck (No 5) [2010] SASC 27; Munro v Munro [2017] SASC 48; Moffa v Starr (No 2) [2024] SASC 132, considered. -- 1 of 10 -- -- 2 of 10 -- EVE v KALAITZIS [2025] SASC 41 CIVIL 1 The applicant in this matter is one of the named executors in the will of the deceased. The respondent is the other named executor. The applicant seeks an order to reverse a transaction made by the deceased some years before her death. Background 2 The matters set out below come from the statement of claim (FDN 1). I note that much of this is disputed by the respondent in his defence (FDN 6). 3 The deceased died in May 2022. The deceased had one child, who predeceased her. The applicant is one of the deceased’s grandchildren. In 2017, she transferred real property to the respondent, her brother. 4 On 20 July 2010, the deceased executed an enduring power of attorney and enduring power of guardianship, in which she appointed the applicant and the respondent jointly and severally as her attorney and guardian. The deceased made her last will on 28 July 2010, in which she appointed the applicant and respondent as her executors. The applicant is also the beneficiary of a share of the residuary estate of the deceased. The respondent does not benefit under the deceased’s will. 5 The applicant alleges that, after the deceased was discharged from hospital in 2017, the respondent hindered the applicant’s ability to carry out her duties as the deceased’s attorney and guardian, and purported to carry them out as sole guardian and attorney. The deceased was the sole registered proprietor of her home, from shortly after her husband’s death in 2002 until 23 June 2017. It appears that the respondent lived with the deceased from about 2011, first on his own and then with his wife and stepdaughter. The deceased moved into an aged care facility in 2020, while the respondent has remained living in the property. 6 On 2 June 2017, a transfer form was lodged at the Land Titles Office, to transfer the property from the deceased to the respondent, “for love and affection and no other consideration”. The transfer gave a life estate to the deceased. The transfer was registered on 23 June 2017. The respondent is now the sole registered proprietor of the property. The applicant has lodged a caveat over the certificate of title of the property. 7 The applicant contends that the deceased’s physical and mental health deteriorated from early 2017. She underwent an ACAT assessment in late January 2017, and in March 2017, a support plan was prepared for her which noted that she had Alzheimer’s dementia and had deficits in memory recall, praxis, language and visuoconstructional drawing. The support plan noted that the deceased lacked awareness of her cognitive decline and that she was physically frail and dependent on assistance with mobility and personal care. The respondent was provided with a copy of the plan. -- 3 of 10 -- [2025] SASC 41 Associate Justice Bochner 2 8 The applicant says that the respondent took the deceased to see a lawyer in mid-2017, to change her will to include a gift to him. The lawyer did not prepare a new will for the deceased. The respondent then took her to a conveyancer, to arrange the transfer of the property to himself, with the creation of the life interest in favour of the deceased. 9 The applicant makes a range of other allegations about the respondent, which are not relevant to the issue the subject of these reasons. I note that the applicant and the other beneficiaries named in the deceased’s will did not become aware of the transfer of the property to the respondent until after her death. At the time of her death, the deceased’s assets consisted of a bank account, with a balance of less than $1,000. 10 The applicant contends that the deceased did not have capacity at the time that she transferred the property to the respondent. She alleges, in the alternative, that respondent exercised undue influence over the deceased, or that it would be unconscionable for the respondent to retain the property. She seeks a declaration that the transfer of the property is void or voidable. She also seeks an order that the respondent be passed over as executor and that probate of the deceased’s will be granted solely to her. The application under consideration 11 No application for a grant of probate has been lodged. Orders for non-party discovery have been made, to obtain medical records, lawyers’ files and the file of the conveyancer who was involved in the impugned transaction. I understand that a very large volume of material has been produced. Both parties have obtained expert’s reports on the question of capacity. 12 The respondent contends that this action is improperly constituted because there is no grant of probate: as a result, the applicant does not have standing to bring it on behalf of the estate. The applicant, on the other hand, has sought an order appointing her as a representative of the estate for the purpose of this action, without the need to obtain a grant of probate. This is opposed by the respondent, who maintains that the applicant should, instead, apply for a grant of probate (with leave reserved for him) and conduct the action in her capacity as executor. The applicant’s position 13 The applicant seeks an order appointing her as representative of the deceased’s estate pursuant to UCR 24.6, which provides: 24.6—Appointment of representative (1) This rule applies to a proceeding concerning— (a) administration of an estate of a deceased person; (b) administration of a trust; or -- 4 of 10 -- [2025] SASC 41 Associate Justice Bochner 3 (c) construction of a written instrument. (2) The Court may appoint a person as a representative party to represent the interests of a class of persons in a proceeding if— (a) the class cannot be readily ascertained; (b) the class can be ascertained but its members, or some of its members, cannot be found; or (c) the appointment should be made to minimise costs. (3) A person appointed under subrule (2) becomes a party to the proceeding. 14 The applicant seeks to invoke this rule in order to minimise costs. She says that the estate comprises under $400, whereas the filing fee for an application for a grant of probate would be at least $957.00 and the associated solicitor’s fees between $1,000 and $3,000. 15 The applicant further says that, if she is unsuccessful in having the transaction set aside, there will be no need for a grant of probate, and the costs associated with it would be wasted. If she is successful in the action, she would be seeking an order that the respondent be passed over as executor; if she obtained a grant now with leave reserved for the respondent, she would need to seek a revocation of that grant, with a further grant issued to her solely. Thus, whether she is successful or unsuccessful in the action, the costs of obtaining a grant in common form now would be wasted. 16 The applicant says that the other beneficiaries of the estate, save for one, have provided their consent to her being appointed as a representative of the estate pursuant to UCR 24.6. The one beneficiary who has not consented has advised that he does not want to be involved in this action. 17 The applicant notes that UCR 24.6 has not previously been considered by the Court. She relies, therefore, on the New South Wales case of Hewitt v Gardner,1 which deals with the equivalent rule in New South Wales. In that case, Ward J said: In circumstances where the estate (even if it were to include the family home) is very small (and if I were to dismiss the proceedings as a nullity it would remain open to the plaintiffs, by seeking the appointment of an administrator ad litem, later to seek to recommence the same claims) it seems to me that it is consistent with the just, quick and cheap resolution of the matters in dispute between the parties to proceed by way of the appointment of an authorised representative where that is a course open to me to adopt.2 18 She went on to say: 1 [2009] NSWSC 705. 2 Ibid, [31]. -- 5 of 10 -- [2025] SASC 41 Associate Justice Bochner 4 The usual circumstance in which a personal representative would be appointed under the rule is where there is no person willing or able to take out a grant of probate or administration and where proceedings cannot be continued or disposed of in the absence of a representative of the estate. However, the use of the rule is not limited to such circumstances. In Hele v Lord Bexley (1852) 15 Beav 340; 51 ER 569 a dispute in the Ecclesiastical Court as to the validity of a codicil to a deceased defendant’s will prevented probate from being granted. The death of the defendant prevented the proceedings from being concluded. The Master of the Rolls, Sir John Romilly, considered that a personal representative could be appointed in such a case. … Accordingly, I am satisfied that r 7.10 does empower the appointment of a personal representative to act as a plaintiff in appropriate cases. Ultimately, the question whether a personal representative should be appointed is an exercise of discretion (Tarratt v Lloyd; Green v Green (1989) 17 NSWLR 343 at 350 per Gleeson CJ).3 19 The applicant further relies on the case of Bayside Council v Estate of Goodman,4 which endorsed the approach taken by Ward J to the New South Wales equivalent to UCR 24.6. The respondent’s position 20 The respondent says that the applicant should be required to obtain a grant of probate, with leave reserved to him, before this matter progresses further. He says that the applicant has intermeddled in the deceased’s estate, including by bringing this action, and so should be required to adopt formally the duties and responsibilities of an executor. In making this submission, the respondent relies on the decision of Judge Lunn in Russo v Buck (No 5),5 where he said, in relation to the equivalent rule in Supreme Court Civil Rules 1987: In the scheme of the 1987 Rules, 87R 30.03 is not intended to operate instead of, or pending, a proper grant of administration for a deceased party seeking a judgment.6 21 The respondent submits that UCR 24.6 is remedial or facilitative, and its objective is to provide a mechanism by which an otherwise unrepresented party may be heard in an action. This will arise where there is no one to represent that party, or there is some other practical difficulty with their representation. In the circumstances of this matter, representation pursuant to UCR 24.6 should only be allowed where there is some practical or other difficulty in having the deceased’s will admitted to probate. 22 The respondent seeks to distinguish the authorities relied on by the applicant on the basis of their facts. 23 The respondent says that there is no practical difficulty in having the deceased’s will admitted to probate and that to do so would be more effective and 3 Ibid, [89] – [92]. 4 [2019] NSWSC 530. 5 [2010] SASC 27. 6 Ibid, [5]. -- 6 of 10 -- [2025] SASC 41 Associate Justice Bochner 5 likely less expensive than proceeding with the application brought by the applicant. The applicant is a named executor and she is already acting as executor by commencing and continuing this litigation. There is no reason for her not to seek a formal grant of probate. Further, the respondent rejects the contention that the cost of a grant of probate should be a barrier to obtaining a grant. In this regard, he notes that an executor can apply for a grant without the assistance of a solicitor, that the filing fee incurred will likely be at the lower end of the range, and the fee is likely to be less than the cost of this application. He further notes that the filing fee is likely to increase at the commencement of each calendar year and so is likely to be more, the longer the delay in applying for a grant. He further surmises that the applicant has funds to pay for the costs associated with this action to date. 24 The respondent says that the applicant should apply for a grant of probate. He says that the applicant should be obliged formally to take on the obligations and duties of an executor, given that she has assumed that role on an informal basis. Further submissions sought from the parties 25 I note that this matter was dealt with on the papers. After reviewing the written submissions filed by the parties, I caused the following email to be sent to them on 5 December 2024: Dear parties Associate Justice Bochner requires supplementary submissions from you on the question of the application of UCR 24.6 to the circumstances of this matter. In particular, she notes that UCR 24.6 provides that “the Court may appoint a person as a representative party to represent the interests of a class of persons”. Her Honour’s understanding is that it is intended that the applicant represent the estate. Is it suggested that, in doing so, the applicant would represent the interests of a class of persons? In addition, her Honour asks that your provide submissions on whether UCR 232.2 would be an appropriate mechanism to allow the issues raised by the applicant in her statement of claim be dealt with, without a grant of probate (or an order for administration). If you are unable to agree a timetable for the filing of these supplementary submissions, please let me know and her Honour will list a directions hearing. 26 On receipt of this email, the parties agreed a timetable for the provision of supplementary submissions. 27 The applicant submits that the class of persons that she would represent if an order were made under UCR 24.6(2)(c) are the seven beneficiaries of the estate. This is a defined class, as the validity of the will in question is not in dispute. 28 The applicant submits that UCR 232.2 would provide an alternative mechanism to allow the issue in question here to be dealt with before a grant of probate has been issued. In this regard, she relies on the words of Stanley J in -- 7 of 10 -- [2025] SASC 41 Associate Justice Bochner 6 Munro v Munro,7 where he addressed the application of the predecessor rule, r 206 of the Supreme Court Civil Rules 2006. She says that she seeks to perform one discrete executorial duty, to litigate the claim against the respondent to recover an asset of the estate while avoiding the full costs of administering the estate until that becomes necessary. 29 The respondent submits that UCR 232.2 is not intended to provide a mechanism by which an estate may conduct substantive litigation against a third party. Nor does this matter meet its criteria because it is not an application for determination of any question or for any relief which could be determined or granted in an application under rule 232.1. In this regard, he relies on Moffa v Starr (No 2),8 where B Doyle J said: Rule 232.2, like the similarly expressed Rule 206 of the Supreme Court Rules 2006 (SA): applies to questions arising in the administration of the estate as between the executor and the beneficiaries and, like the administration action, is designed to deal with problems arising within the administration of the estate and to enforce administration according to legal and equitable principle, not to authorise or to direct departures from it.9 (footnotes omitted) 30 The respondent says that this passage, which itself quotes a passage from Munro, makes it clear that UCR 232 is directed at the internal affairs of the administration of an estate. It is not a mechanism to allow an executor to avoid taking a grant of probate in order to pursue contested inter partes litigation. 31 I note that the respondent does not address the applicant’s submission that the class of persons whom she would represent pursuant to UCR 24.6 would be the beneficiaries of the estate. I understand by this that he seeks to assert that the appropriate way to do this would be by obtaining a grant of probate, not that there is not an identifiable class. Consideration 32 I am of the view that this is a matter where it is appropriate for the questions raised by the applicant be determined before there is a formal grant of probate. It seems to me that any grant that issued now would be otiose, whatever the outcome of this action: if the applicant is successful, the grant would need to be revoked so as to pass over the respondent as executor and if she is unsuccessful, no grant at all would be required. Either way, requiring the applicant to obtain a grant now would result in wasted time and costs for the applicant, and possibly the estate. 33 The question of intermeddling is not relevant on this application. Given that it is the applicant’s clear intention to seek a grant in her favour once this action is 7 [2017] SASC 48, [23], [27]. 8 [2024] SASC 132. 9 Ibid, [26]. -- 8 of 10 -- [2025] SASC 41 Associate Justice Bochner 7 complete (in the event that she is successful), the question of intermeddling does not arise. Further, I consider that there is no basis for the respondent’s contention that the applicant is seeking to avoid the duties and responsibilities of an executor, as there can be no doubt that she intends to apply for a grant, as this is part of the relief sought in this action. Further, I note that all of the beneficiaries of the estate have either consented to the applicant’s appointment as the representative of the estate for the purpose of this action, or have advised that they do not want to be involved. 34 I consider that the respondent’s reliance on Russo v Buck is misconceived. The rule considered by the Court in that matter is not the same rule as that invoked here. The equivalent rule in the 1987 rules to UCR 24.6 is rule 29.01, not rule 30.03. Rule 29.01 of the 1987 Rules provides: 29.01 In any proceedings concerning: (a) the administration of the estate of a deceased person: (b) property subject to a trust; or (c) the construction of a written instrument including a Statute regulation order in council or other statutory instrument The Court may appoint one or more persons to represent any person (including an unborn person) (whether presently or for any future, contingent or unascertained interest) who may have a relevant interest or who may be affected by the proceedings where: (i) the person, class or some member of the class cannot be ascertained or cannot readily be ascertained; (ii) that the person, class or some member of the class cannot be ascertained, cannot be found; (iii) that, though the person or the class and the members thereof can be ascertained and found, it appears to the Court expedient to exercise the power for the purpose of saving expense. 35 Rule 30.03, on the other hand, deals with the situation where a deceased person has an interest in a proceeding in the Court. 36 While the rule considered by Ward J in Hewitt v Gardner is somewhat different in its terms of UCR 24.6, I consider that the approach taken by her is instructive. That case also dealt with a situation where, unless the probate action in question was successful, the assets of the estate would be minimal. I note, too, that unlike the rule considered by Ward J, UCR 24.6 specifically contemplates its use to minimise costs. I consider that the appointment of the applicant as the representative of the estate pursuant to UCR 24.6 would be consistent with the -- 9 of 10 -- [2025] SASC 41 Associate Justice Bochner 8 object of the UCR, “to facilitate the just, efficient, timely, cost-effective and proportionate resolution or determination of the issues in proceedings”.10 37 I am satisfied that the class of persons whose interests the applicant would represent are the beneficiaries of the estate. 38 Given the conclusion that I have reached, I do not consider whether UCR 232.2 could be used as an alternative mechanism to empower the applicant to bring this action. I make the following orders: 1. Pursuant to UCR 24.6, Amanda Eve is appointed, nunc pro tunc, to represent the interests of the beneficiaries of the deceased estate of Angela Constable. 2. Amanda Eve, as representative of the beneficiaries of the estate of Angela Constable is substituted as the applicant in this proceeding. 39 I will hear the parties on the question of costs. 10 UCR 1.5. -- 10 of 10 --