Borbil v Borbil [2025] QSC 356

SUPREME COURT OF QUEENSLAND CITATION: Borbil v Borbil [2025] QSC 356 PARTIES: TIMOTEI BORBIL AS EXECUTOR OF THE ESTATE OF RAVEICA NEGREAN, DECEASED (Applicant) v COSMIN FLORIN BORBIL (First respondent) CRINA FLORINA BOCOS (Second respondent) JOHN NEGREAN (Third respondent) ELISEI SAMUEL BORBIL (Fourth respondent) FILE NO: BS 327 of 2025 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 21 August 2025 (delivered ex tempore) DELIVERED AT: Brisbane HEARING DATE: 21 August 2025 JUDGE: Hindman J ORDER: 1. By no later than 4pm on 18 October 2025 John Negrean and any persons occupying the property situated at 3 Falstaff Street, Sunnybank Hills (Property) shall deliver up vacant possession of the Property to the applicant. 2. By 4pm on 29 August 2025 the applicant is to serve a copy of this order on the occupants of 3 Falstaff Street, Sunnybank Hills: (a) by delivering to 3 Falstaff Street, Sunnybank Hills, a copy of the order in envelopes addressed to – (i) Simon Stavris; (ii) Brooke Norman; (iii) Yumin Kim; and -- 1 of 11 -- 2 (iv) The occupants of 3 Falstaff Street, Sunnybank Hills; and (b) By attaching a copy of this order to the front and back door of 3 Falstaff Street, Sunnybank Hills. 3. No order as to costs. CATCHWORDS: SUCCESSION – ADMINISTRATION OF ESTATE – where the applicant is the executor of estate of Raveica Negrean, deceased (the estate) – where the third respondent is a beneficiary of the estate – where real property (the property) forms the main asset of the estate – where the third respondent was in possession of the property and caused the property to be leased to third party tenants – where the applicant seeks vacant possession of the property – whether, in considering the assets and liabilities of the estate, vacant possession of the property ought be ordered Succession Act 1981 (Qld), ss. 6(1), 52, 56, 59 Uniform Civil Procedure Rules 1999 (Qld), rr. 645, 657C Re Negrean; Borbil v Borbil [2025] QSC 66, cited COUNSEL: The applicant appeared on his own behalf The third respondent appeared on his own behalf A Fronis for Simon Stavros, an interested party The first, second and fourth respondents did not appear SOLICITORS: The applicant appeared on his own behalf The third respondent appeared on his own behalf Ace Solicitors for Simon Stavros, an interested party The first, second and fourth respondents did not appear Background and procedural history [1] This matter has a fairly lengthy history. There were initially three applications heard in two proceedings on 26 March 2025. The relevant proceedings are the current file, 327/25, and file 4542/23. The persons who appeared on those three applications, and who appear today, are as follows. Timotei Borbil, who I will refer to as “Tim”. He appears as the executor of the estate of Raveica Negrean, who is deceased. The other person appearing is John Negrean, who I will refer to as “John”, who is one of the beneficiaries of the estate of the deceased. [2] The deceased’s husband predeceased her. She left five children, Cosmin Borbil, Crina Bocos, John, Elisei Borbil who I will refer to as “Eli”, and Tim. The deceased died on 2 March 2019, leaving a will dated 18 February 2019. It took some time for probate of the will to be obtained. It was granted to Tim on 14July 2023. [3] In March 2025, two of the applications heard were brought by John against Tim, as the executor, on file 4542/23, which was the probate file. They were applications that -- 2 of 11 -- 3 had been filed on 8 November 2024 and 3 December 2024. John indicated that he did not wish to proceed with those applications, and they were dismissed. [4] The third application was brought by Tim, as executor, on the current file, 327/25, which application was filed on 24 January 2025. It was an originating application. There was an amended originating application filed on 11 March 2025. In summary, the amended originating application sought two different forms of relief: first, declarations as to the proper construction of the deceased’s will, and second, the delivery up of vacant possession of the real property that forms the main asset of the estate, which is located at 3 Falstaff Street, Sunnybank Hills, and which I will just refer to as “the property”. [5] At that time, back in March, whatever was the proper construction of the will, the parties seemed to accept that, absent some agreement with John to pay the outstanding estate debts, the property would have to be sold to satisfy the debts of the estate, which could not otherwise be satisfied without the property being sold. [6] Back in March I informed the parties that I would not immediately make orders for possession so as to give the parties some time to negotiate a possible payment by John to satisfy the estate’s debts so that the property did not need to be sold and it could then be transferred to John and Eli in accordance with the terms of the will. And otherwise, if no agreement could be reached, then the Court would, at a future time, hear submissions about the terms that ought to attach to any delivery up of vacant possession orders to be made. [7] I delivered judgment in relation to paragraphs 1 to 3 of the amended originating application regarding the proper construction of the deceased’s will on 3 April 2025. That case citation is Re Negrean; Borbil v Borbil [2025] QSC 66. There was also a costs order made on the same day in favour of the applicant on the indemnity basis that was to be paid from the estate. That can be seen in the order at court document 16. [8] The key findings that I made in relation to the construction of the will are recorded in the judgment but I will recite them here: (a) the will does not create any life interest in the property in favour of John; (b) the will does not create any right of residence in the property in favour of John, and if it did, that right of residence has been terminated; (c) the property is to go to John and Eli in equal shares; (d) the investment property is to go to Tim; (e) the pink Argyle diamond, gold rings, gold necklaces, gold watches, gold bracelets and scrap gold are to go to John; (f) the motor vehicle is to go to John; (g) everything else located at the property belonging to the deceased is to go to the five children in equal shares; and (h) any residue is to go to John and Eli in equal shares. -- 3 of 11 -- 4 [9] Since that decision was published, proceeding 327/25 has been before the Court for a number of reviews for the purpose of advancing and ultimately resolving the relief that was adjourned in the amended originating application concerning the delivery up of vacant possession of the property. [10] There was first a review on 15 May 2025. The application for relief in paragraph 4 of the amended originating application was adjourned for further review to a date to be fixed, and directions were made by me to facilitate the applicant obtaining some assistance from LawRight, if LawRight considered it appropriate, to help the applicant calculate the debts of the estate, including in respect of any disputed costs, and to formulate any claim for executor expenses, and to assist in a mediation between the parties. [11] Before the mediation could take place, John was placed into the custody of the State. I understand that to have occurred as a consequence of an alleged breach of parole. Those earlier orders, then, were vacated at a further review that took place on 12 June 2025 in the circumstances of John having been returned to custody, and the underlying purpose of those orders, that is mediation, not then being able to be readily achieved. Directions were made on that day to get the matter ready for hearing and it was listed to be heard today. [12] Tim filed two further affidavits pursuant to the directions that I made. John did not comply with directions to file further material. There was a pre-hearing review that took place on 14 August 2025. It is plain that John’s return to custody placed John in a more difficult position in respect of his ability to organise finance to fund the payout of the estate’s debt so that the property need not be sold, and it caused him to be in a more difficult position in respect of complying with my orders concerning the readying of the balance of the amended originating application for hearing. [13] At the review on 14 August 2025, that noncompliance having been noted, John indicated that he did intend to file further material. He requested a further adjournment of the hearing, but no evidence was provided in support of such an oral application and the request was denied. And so the hearing remained listed for today, 21August 2025. At the hearing today, both John and Tim have been granted leave to rely upon some further written material, and each of John and Tim were required for, and were the subject of, cross-examination by the other. Material relied upon [14] In the circumstances of Tim and John now both being self-represented, Tim having been self-represented since the 15th of May 2025 (note court document 21) and there being originally those two related files, I have had regard to material filed on both the files, not only the file upon which the amended originating application appears. [15] I record the material that was the written material relied upon by each of those persons. For Tim, there is: (a) the amended originating application filed 11 March 2025, court document 8; (b) the affidavit of Tim filed 24 January 2025, court documents 2 and 3; (c) the affidavit of Tim filed 25 February 2025, court document 5; -- 4 of 11 -- 5 (d) the affidavit of Bunter filed 27 February 2025, court document 6; (e) a further affidavit of Tim filed 7 July 2025, court document 24; (f) a further affidavit of Tim filed 9 July 2025, court document 25; and (g) the applicant’s outline regarding possession, filed 14 March 2025, court document 10. [16] The exhibits that have been tendered during the hearing comprise: (a) a bill of costs in taxable form from the Estate Lawyers who previously acted for the estate, dated 22 July 2025 in the sum of $109,999.20, which is exhibit 1; (b) a notice of objection from the executor, which seems to have been given in response to that costs statement, dated 11 August 2025, which is exhibit 2; and (c) a statement of moneys owed to the estate from rental income, dated 20 August 2025, that appears to be a document in the nature of a statement by Tim himself, which is exhibit 3. [17] For John, the material comprises: (a) the respondent’s response to the amended originating application filed 26 March 2025, court document 14; (b) John’s affidavit filed 7 February 2025, court document 4; (c) the respondent’s outline of submissions, filed 21 March 2025, court document 12. [18] There is also court document 17. That appears to be a notice of objection. John filed that document on 7 May 2025, purportedly on his own behalf and on behalf of Eli, although there is no authority in that respect on the file showing that John is authorised to have filed that document on behalf of Eli. It is a notice of objection to the costs statement, dated the 28th of April 2025. That costs statement appears to be an earlier assessment of costs that was carried out by the Estate Lawyers. [19] John also relies upon: (a) two affidavits under his hand filed 7 May 2025, which are court documents 18 and 19; (b) an affidavit of a person by the name of Schofield filed 19 August 2025, court document 28; and (c) from the other file4542/23, there is John’s affidavit filed15 November 2024, a copy of which I have put on this file and marked it exhibit 4, and an affidavit filed 3 December 2024, a copy of which I have put on this file and marked it exhibit 5. Interested party [20] I turn then to the fact that Tim and John are not the only persons who appear before the Court this morning. The evidence discloses that there are presently up to five tenants residing at the property. One of those tenants, Simon Stavros, has appeared -- 5 of 11 -- 6 at the hearing today as an interested party, seeking leave to be heard. Over Tim’s objection, I granted that leave and received into evidence an affidavit from Mr Stavros. [21] Mr Stavros has been represented by a law firm and a barrister. It perhaps is relevant to note that the material discloses that that law firm, at some stage in the recent past, seems to be a firm that John has paid money to for services. But I clarified at the outset that the firm and barrister were appearing today on behalf of Mr Stavros and not on behalf of John. [22] The evidence discloses that Mr Stavros moved into the property on 14 January 2025. In that respect, he has dealt at all times with John. There was no formal rental agreement until early May 2025, when John asked Mr Stavros to enter into one to support a finance application that John was apparently making. There is a signed rooming agreement in evidence. [23] The difficulty, of course, with this arrangement is that John is not the owner of the property and is not an authorised agent of the owner. The owner is the estate of the deceased. The estate acts through the executor. The executor in this proceeding is seeking vacant possession, so plainly any rental agreement that has been entered into with any tenants through John is not with the consent of Tim. [24] It is reasonable to infer that that is the position in respect of all of the tenants. They are not properly authorised by the owner of the property or its representatives to actually be present at the property. Concerningly, in large part – and it seems for a lengthy period of time – John has been collecting and keeping most of the rent paid by tenants living at the property. He is not the proper recipient of such moneys. [25] There have been some recent payments by tenants to the estate, and apparently some $50,000 previously collected in rent by John has been used to pay some estate expenses. John also claims, although there is not really any particular evidence of it, that some rent may have also been spent on property maintenance and repairs and therefore, for the benefit of the estate. [26] John has said during submissions today that he will account to the estate for the rent received, but the simple reality is that, as at today, he has not. The position advanced by counsel for Mr Stavros is that, should the Court order vacant possession of the property, it should have regard to the interests of the tenants, and not seek to have them vacate within 14 days, which is the timeframe sought in the amended originating application. It was submitted that a period in the order of 30 days, four weeks, a month would be more appropriate as a reasonable period of time to vacate for those affected people who will need to find somewhere else to live. [27] Counsel was not able to identify for me any statute that provides for a minimum period of notice that would need to be given in the particular circumstances, those circumstances including that the tenants are not present at the property with the consent of the owner. There is, in the affidavit of Stavros, copies of a notice of lessor’s intention to sell premises, dated 13 August 2025, and a notice to leave dated 13 August 2025, that later notice requiring the tenants to vacate by 18 October 2025. Those notices appear to have been served by the executor’s agent on the estate’s behalf to at least three of the tenants who are named in those documents. -- 6 of 11 -- 7 [28] I do not consider it is for me, in the application that is actually before the Court, to determine any tenancy rights that the tenants may claim to have. However, if orders for vacant possession are made by me today, I will allow a reasonable period of time for vacant possession to be delivered up, to give the tenants an opportunity to vacate or take such other action as they may see fit in the appropriate jurisdiction. Objection to costs order [29] There are some other matters to preliminarily note. I turn back to court document 17, which I have mentioned is a document relied upon by John. It was filed by him on 7 May 2025 and purports to be a notice of objection on his own behalf and on behalf of Eli in respect of a costs statement dated 28 April 2025. I am making an assumption that that is in respect of a costs order that was made in respect of my earlier judgment where the estate was to recover the costs of the proceeding on an indemnity basis, to be paid from the estate. [30] It appears on the material I have before me that that costs statement may have been for some $106,222.95, and the objection purports to object to approximately $60,000 of that statement of costs. The objection seems to be made on the basis that the assessment has not been carried out in accordance with the scale, but I note that the assessment, in its terms, says that it is an assessment “pursuant to a costs agreement, (Supreme Court scale modified)”. There is no costs agreement in evidence. [31] The objection is of no effect in any event. The person liable to pay the solicitors’ costs will be the estate. If it is a bill that has been presented in assessable form and there is evidence of an objection by the estate to those costs claimed, then that has its own processes that are separate from the application before me. It is not for me to carry out any assessments of costs based on the documents filed to date. [32] There is no application for an assessment of costs, either under the Legal Professional Act 2007 (Qld) or the Uniform Civil Procedure Rules 1999 (Qld) (the Rules) that is brought before me for resolution today, nor is there any application before the Court for the filing, assessment or passing of estate accounts, which is dealt with in rule 645 of the Rules, and there is no application for commission, rule 657C. They are not matters that I will be dealing with today. Assets and liabilities of the estate [33] What today comes down to is what are the available assets and the debts of the estate. John’s affidavit filed 7 May 2025, court document 18, includes correspondence from the estate’s then solicitors dated 2 May 2025. That is at page 17 of the exhibits. It is an email from the Estate Lawyers dated 2 May 2025 to Mr J Negrean and Mr E Borbil – John and Eli. [34] In that correspondence, the solicitors set out what they say is the estimated schedule of liabilities of the estate. The liabilities comprise reimbursements owing for estate expenses in the sum of $32,423.84; the Estate Lawyers’ fees as assessed by an independent costs assessor on the Supreme Court scale for the period 25 June 2024 to 17 April 2025 in the amount of $106,222.95; barristers’ fees incurred as at the 22nd of March 2025 in the sum of $27,362.50; estimated further legal fees to completion of the estate, $30,000; estimated accountant fees, $11,000; estimated taxation -- 7 of 11 -- 8 liability, $100,000; and general contingencies of $60,000 to give estimated liabilities of the estate as at the 2nd of May 2025 of $367,009.29. [35] The independent cost assessment is set out in a short-form way in a letter from Global Billing Legal Costs Consultants, dated 28 April 2025, starting at page 19 of the exhibits. It is a short-form account as distinct from the bill in assessable form – it used to be called taxable form – which in the present application is now exhibit 1. [36] That is one source of information I have about what are the present liabilities of the estate. In the same affidavit filed 7 May, court document 18, John says that he has paid $50,000 to the estate’s solicitors. I mentioned before that they are funds that he said are rental amounts that he has collected, apparently, somehow, on behalf of the estate, albeit not with the authority of the executor. A disbursement of that $50,000 in funds that were paid to the solicitors can be seen in court document 24, which is an affidavit of Tim, at exhibit page 25. [37] That document is a trust account authority provided by the Estate Lawyers that the Estate Lawyers have provided to the executor to authorise the disbursement of the $50,000 payment received. What it demonstrates is that all of the barristers’ fees that were owing have apparently been paid. That seems to be in the total of about $33,000. The balance of the $50,000, some $17,137.50, has been applied to amounts owing to the Estate Lawyers. It is plain that that amount is far less than the amount actually outstanding to the solicitors. [38] John made a submission by reference to this document that, in the second last row, the reference “balance, the Estate Lawyers trust account, zero” means that no amount is outstanding. That is not a proper construction of the document. All it demonstrates is that the $50,000 that was received into the trust account has been disbursed in the way set out in the authority, which will have only reduced the solicitors’ outstanding fees by approximately $17,000. Compare that to what I have said about the short-form costs assessment that has been made and now the long-form assessment that has been produced in exhibit 1. [39] There is then also Tim’s affidavit, that same affidavit filed on 7 July 2025, that purports to set out what the outstanding assets and liabilities of the estate are. There are several errors evident in this document. It purports to be the assets and liabilities of the estate as at 4 July 2025. The assets are recorded as being the property, with an estimated value of $900,000 plus. There are funds in the estate bank account, the balance as at the 4 July 2025 being $2,659.94. That is supported by a bank statement that has been produced. [40] There is then said to be a pink diamond valued at some $45,150. It is not plain to me that that properly is an asset of the estate. There is evidence before me that, as I have discussed, the pink diamond in the will was left to John. He might alternatively claim it has always been his. It does not currently matter for present purposes. John appears to have provided the diamond to Tim for the purpose that it might be able to meet these costs outstanding in relation to the estate, to be used for that purpose so that the property does not have to be sold, but there is no evidence that I can see that it has been gifted such that it would actually form an asset of the estate. [41] John has claimed that it is a pink Argyle diamond which might have a value in the order of half a million dollars. There is no good evidence to support that. What there -- 8 of 11 -- 9 is that has been obtained by Tim is a valuation that the diamond might have a fair market value of about $45,000. It has not presently been verified as an Argyle diamond but just a pink diamond, and it is not readily convertible to cash because a ring of that type is likely to take some time, potentially years, to sell. [42] In any event, the point for present purposes is that there is no evidence that it is an actual asset of the estate. It seems to me that it, at the moment, might be more appropriately thought of as an asset that John has the potential to use to pay some of the estate’s debts. [43] The next asset of the estate is alleged to be some $63,180 that it is said John has collected in board and rent from various people, and has not paid to the bank account except for three deposits totalling some $3,000. Again, it might be that there are amounts that have been received by John that are properly payable to the estate, but, in the calculation that I am doing, whatever amount that is, if it was paid to the estate, it could potentially reduce the estate’s liabilities by the same amount, so it sort of cancels each other out for the present purposes and does not have to be thought about too much. [44] The $50,000 paid by John to the Estate Lawyers does not appear to me to be an asset. It looks like it has been disbursed. It has reduced, insofar as the debts of the estate are concerned, the debts of the estate by that amount. [45] And then it is said that there is an asset of money to be collected from John to cover costs awarded related to the previous trial, estimated $40,000. It is not clear to me what costs order that relates to. There is no costs order to that effect that I have made. There is no evidence before me of any other costs orders. [46] The liabilities then are recorded in the document as being, effectively, the solicitors’ outstanding fees, which is advised to be ranging from $81,000 approximately up to $106,000. That does seem to be a fair estimate based on the cost statements that are before me, less the amount that has been applied to those fees. There is then recorded, also in to be advised amounts, taxes. I note that that is something that was contemplated in the lawyers’ estimations. [47] There are executor fees of five per cent of the estate value stated to be an estate liability. As I have mentioned, there is no application before the Court about an application for commission. So at the moment I would not permit that to form part of the liabilities of the estate to be considered. There are further legal costs to be advised. Again, that is something that was contemplated in the solicitors’ estimation, though at the moment the executor is self-represented. [48] There is a liability for estate accounting, again something that was contemplated in the solicitors’ estimate, and there is said to be insurances payable, and I see that there is material before me about the difficulty of the estate keeping insurances up-to-date because it does not have cash available to it to pay those expenses. [49] That is what is said by the executor about the assets and liabilities of the estate at the present time. -- 9 of 11 -- 10 Consideration [50] Given the problems that I have set out with Tim’s summary of the estate’s assets and liabilities, I think that the best evidence that the Court can act on for today’s purposes is the Estate Lawyers estimate that was at page 5 of the exhibits, which demonstrates that there is, even after the $50,000 is taken into account, a significant amount of estate expenses remain to be paid. [51] I note also that whilst John has, in submissions today, made some indication that the rent that has been collected could be paid to the estate to help reduce the amounts outstanding, that is not historically what has occurred and any amounts that he is holding at the moment which have not been disclosed have not been remitted to the estate. [52] The position today is that the estate needs to be finalised. The executor has obligations to finalise the estate. These are set out in the Succession Act 1981 (Qld) (Succession Act), section 52, which deals with the duties of the personal representative. There is also section 56, which deals with property of deceased assets for the payment of debts, and section 59, which deals with the payments of debts in the case of solvent estates. It is one of the first things an executor should do: get in the assets, pay the debts and then distribute the estate. [53] The Court has jurisdiction under section 6(1) of the Succession Act in these terms: “Subject to this Act, the court has jurisdiction in every respect as may be convenient to grant and revoke probate of the will or letters of administration of the estate of any deceased person, to hear and determine all testamentary matters, and to hear and determine all matters relating to the estate and the administration of the estate of any deceased person; and has jurisdiction to make all such declarations and to make and enforce all such orders as may be necessary or convenient in every such respect”. That is the power pursuant to which the relief in paragraph 4 of the amended originating application is sought. [54] The finalisation of the estate here requires the estate’s debts to be paid. There is no firm proposal by John that would see him meet those debts, such that the property need not be sold. Whilst I appreciate that his incarceration has made putting together a proposal more difficult, the evidence simply does not support even an inference that, if afforded even more time than I already given, satisfactory arrangements could be made. The evidence about the pink ring I have summarised; there is no evidence that it is, of itself, sufficient in value to clear the estate’s debts. [55] Whilst it has been claimed by John that he either had finance or could get finance to meet the estate’s debts, that is not demonstrated by the evidence. As high as it goes in terms of an application for finance is an exhibit attached to the affidavit of Schofield, which is court document 28, which shows that, back in April 2025, there was an application for $342,250 by John, as a borrower in respect of the property, the application being 92 per cent completed. It does not demonstrate that that finance is available, even if the application were completed. [56] There is no evidence before me as to when John might be released from custody. There is no verifiable, realistic, reasonable plan placed before me by John for the payment of the outstanding estate expenses. There is no evidence about any particular amount of cash that could come from John to satisfy estate debts, and it is not -- 10 of 11 -- 11 acceptable for the outstanding estate debts to be paid by way of some drip feed into the future from any incoming rent. [57] I am, at this point, therefore, persuaded that the Court should permit the executor to take the necessary steps to finalise the estate. At the moment, doing the best I can on the evidence before me, I conclude the outstanding debts of the estate cannot be met except through the sale of the property, and there is no alternate plan that is satisfactory. That means that the property, in order to finalise the estate, will need to be sold, and vacant possession of the property is required by the estate for that purpose. John should no longer be permitted to continue acting as if the property is already his. It is not. It belongs to the estate, and the estate has debts that need to be paid. [58] I am prepared to order relief in accordance with paragraph 4 of the amended originating application, save that, in the circumstances of the tenants and the notices that have been served on the tenants on behalf of the estate, I am going to require that the time period for delivery will be no later than 4pm on 18 October 2025. [59] I will make a further order that the applicant is to serve a copy of the order on the occupants of 3 Falstaff Street, Sunnybank Hills, by 4pm on 29 August 2025: (a) by delivering to 3 Falstaff Street, Sunnybank Hills, a copy of this order in envelopes addressed to: (i) Simon Stavros; (ii) Brooke Norman; (iii) Yumin Kim; and (iv) the occupants of 3 Falstaff Street, Sunnybank Hills; and (b) by attaching a copy of this order to the front door and the back door of 3 Falstaff Street, Sunnybank Hills. [60] Those are the orders that I make. There is no order as to costs. -- 11 of 11 --