Executors do not retain their roles indefinitely. Once their duties concerning an asset are complete, they hold that asset in trust for the beneficiary—even without a formal transfer. Executors who fail to take the final step of transferring title may inadvertently expose estate property to personal creditor claims if they are also the beneficiary.

In Deak v Estate of the Late Carolina Nacinovich and Ermanno Giurina [2024] VSC 710, the plaintiffs sought to enforce costs orders against Mr Giurina, obtained in 2018 and taxed later that year. Although a warrant for seizure and sale was issued, the Sheriff couldn’t locate any assets in Mr Giurina’s name.

Attention then turned to a property at 120 Elizabeth Street, Geelong West — inherited by Mr Giurina under a Will but still registered in the deceased’s name more than 22 years after probate. The Sheriff was selling the property to satisfy separate cost orders owed to the Greater Geelong City Council.

Mr Giurina had repeatedly—and unsuccessfully—tried to block the sale, arguing that the estate had been entirely administered and that he now owned the property personally. The courts found otherwise, holding that the estate remained unadministered due to outstanding liabilities and the failure to transfer title.

Administration of an estate is the performance by the executor of their role to execute the instructions of the testator as to the disposition of their estate’ ([2024] VSC 710 at [75]).

Thus, an estate is managed until the executor’s responsibilities are fulfilled. The primary duties of an executor include collecting the testator’s assets, settling the debts of the deceased, covering testamentary and funeral costs, distributing the legacies designated by the Will, distributing the assets following the Will and producing accounts. However, the law may treat the administration as coming to an end for each asset of the estate once that asset has been administered following the testator’s directions:

‘The end of executorial duties is ordinarily evidenced by the assent (which may be express or implied) or distribution of the estate to the beneficiaries, at which time a beneficiary’s interest in the estate assets is vested’ ([2024] VSC 710 at [75]).

The plaintiffs sought declarations that the proceeds from the Sheriff’s sale belong to Mr Giurina and can be used to satisfy the original Costs Orders. Alternatively, they ask the Court to allow execution against the estate proceeds, citing the exceptional delay and Mr Giurina’s conduct.

Mr Giurina opposes the application, arguing that the proceeding is invalid due to procedural issues under the Owners Corporations Act and that he has no legal or equitable interest in the sale proceeds as the estate remains open.

The matter raises complex issues about the administration of estates, beneficiaries’ rights, and how long executorial duties can remain “unfinished” — especially when cost orders are in play.

Steffensen AsJ provided helpful clarification concerning the completion of an estate’s administration—a question with real consequences for executors and beneficiaries.

Background

Carolina Nacinovich died in 2002, leaving her house to her executor, Ermanno Giurina, who was granted probate some seven months after her death. However, by 2024—more than two decades later—the property in question, 120 Elizabeth Street, Geelong West, was registered in the name of the deceased, Carolina Nacinovich, not in Mr Giurina’s name.

In Giurina v Sheriff (Vic); Hooks Industries (Vic) Pty Ltd v Giurina (Costs) [2025] VSC 155 creditors—including the Greater Geelong City Council—sought to enforce costs orders via warrants of seizure and sale.

“In seeking orders as to her costs, the Sheriff is mindful of the recent decision Deak v Estate of the Late Carolina Nacinovich and Ermanno Giurina [2024] VSC 710 … and the potential interaction with the application for costs in this proceeding and in Hooks Industries v Giurina (SECI 2024 04767).”

Giurina lodged successive caveats to stop the sale, giving rise to multiple rulings on caveat law, executorial interest, and estate administration.

Key Legal Issues and Findings:

1. Standing under the Transfer of Land Act 1958

In Giurina v Greater Geelong City Council & Anor [2023] VSCA 148, the Court of Appeal confirmed that a party need not hold an interest in land to apply under s. 90(3) to remove a caveat. It rejected Giurina’s argument that only someone with a proprietary interest (such as the Sheriff under a warrant) could apply.

The Court of Appeal in Giurina v Greater Geelong City Council & Anor [2023] VSCA 299 rejected the notion that a warrant holder alone had standing to seek caveat removal.

2. Merits of the Caveat Claims

In Giurina v Registrar of Titles [2023] VSC 784, the Court held that Giurina’s caveat claiming a freehold estate in the property “as trustee for himself” was legally untenable. An executor cannot claim such an interest in their personal capacity.

The Court emphasised that a beneficiary under an unadministered estate has no proprietary interest in the land, only a right to compel due administration.

3. Leave to Lodge Further Caveats

In Giurina v Sheriff (Vic) [2024] VSCA 112, the Court clarified that granting leave to lodge further caveats is discretionary once a restraining order is in place. The Court may consider all relevant factors, including the applicant’s conduct and prior litigation history.

In Giurina v Greater Geelong City Council & Anor [2023] VSCA 299, the Court of Appeal (Beach and McLeish JJA) refused Giurina leave to appeal and amend his proposed grounds. Key findings included:

1. Standing under s. 90(3): Reaffirming the earlier decision (VSCA 148), the Court held that judgment creditors do not need a proprietary interest in the land to seek removal of a caveat under s 90(3) of the Transfer of Land Act 1958.

2. Proprietary Estoppel Argument: Dismissed as meritless Giurina’s claim that a 2003 self-directed “assent” and subsequent personal payments gave rise to proprietary estoppel.

3. Specific Bequest Argument: The Court held that while the Will gave the property “absolutely” to Giurina, it did not vest immediately upon death. There was no prima facie case of complete administration of the estate.

4. Abuse of Process: Giurina had not taken any steps to advance the claim he relied on to justify the caveats. If he now sought to litigate those issues anew, it would risk constituting an abuse of process under the Anshun principle.

Anshun Estoppel

In Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45, the High Court established the principles of “Anshun estoppel”, barring a party from asserting claims they should have addressed in previous proceedings. 

Reasonableness is the focus of the standard established, and a party cannot introduce an issue in later proceedings if it would be unreasonable for them not to have raised it in the earlier proceedings. If deemed unreasonable, that party may be “estopped” (or barred) from doing so, effectively forfeiting the right to make that claim entirely. 

Anshun Estoppel is significantly different from

  • res judicata, where a judgment has a binding effect on subsequent proceedings to ensure finality in legal disputes and prevent redundant litigation and
  • “issue estoppel,” where a party seeks to re-litigate a settled matter.

In contrast, an Anshun estoppel occurs when the claim or issue is so intimately related to the subject matter of the previous proceedings that it would be unreasonable not to have been raised in those proceedings.

Late Amendment: The Court also declined to allow amendment of the appeal grounds, noting Giurina’s admission that he was only adding grounds because he realised he otherwise had no prospect of success.

In Giurina v Registrar of Titles [2023] VSC 784, Barrett AsJ dismissed Giurina’s application for leave to lodge a new caveat after earlier orders restrained him.

Giurina argued that he held the property on trust due to a constructive, resulting, or implied trust based on personal expenditures exceeding $120,000. He also contended that he had administered the estate and assented to transferring the property to himself in 2003.

The Court rejected these arguments, holding:

  1. No Trust for Oneself: A person cannot simultaneously hold legal title and the full beneficial interest in land on trust for themselves. Any equitable interest would merge with the legal interest.
  2. No Constructive Trust: No trust could arise to address the supposed unconscionability between Giurina, who acts as executor, and himself, who acts as beneficiary.
  3. Invalid Assent Argument: Under s 41(1) of the Administration and Probate Act, an executor cannot use assent to split real property’s legal and equitable estates.
  4. No Caveatable Interest: Giurina’s asserted interest was not legally tenable and could not support a caveat.
  5. Personal liability of the Executor: Incurring property-related expenses did not entitle the executor to a caveatable interest. Claims based on separate capacities (executor vs. beneficiary) were largely irrelevant to the leave question.
  6. Matthews AsJ Orders Stand: Even if the enforcement issue was relevant, prior orders declaring the Court could not revisit a property subject to costs orders and the enforcement warrant.

Background 

  • Giurina inherited the property under the will and purported to assent to its transfer in a handwritten note in 2003 but never registered it.
  • Costs orders were made against him as executor following litigation with the Council concerning a 2019 building order.
  • The Sheriff issued warrants for seizure and sale, prompting Giurina to lodge two caveats in 2022, citing estoppel and beneficiary status.
  • Matthews AsJ ordered their removal and barred further caveats without leave of the Court in [2023] VSC 59. The Court of Appeal upheld this decision.

These decisions highlight that:

  • A judgment creditor or adversely affected party may apply to remove a caveat under s. 90(3), regardless of whether they hold a legal interest in land.
  • Executors who fail to finalise administration cannot shield estate assets indefinitely from enforcement.
  • Courts will scrutinise attempts to misuse caveats to frustrate lawful enforcement, particularly by executors purporting to act in their interest.

Enforcement of Costs Orders Against Estate Property — Giurina v Plaintiffs (Unreported, Supreme Court of Victoria, 2025) concerned the plaintiff’s attempts to enforce costs orders made in 2018 against Mr Ermanno Giurina, the second defendant, by executing a warrant of seizure and sale. 

Despite inheriting the property under the Will, Mr Giurina did not transfer legal title to himself two decades later. The plaintiffs sought declarations that would enable them to enforce the costs orders against the proceeds of the Sheriff’s property sale to satisfy unrelated Council costs orders against Mr Giurina in his capacity as executor.

Key Issues:

  1. Whether full estate administration occurred such that Mr Giurina held a vested interest in the property.
  2. Whether the plaintiffs could enforce the costs orders against the property sale proceeds in Carolina Nacinovich’s estate.
  3. Does Mr Giurina have standing to object to the sale or argue that the plaintiffs’ claim was invalid?

Submissions

The plaintiffs submitted that the estate administration was effectively complete or would be upon the sale and that Mr Giurina, as sole beneficiary, was entitled to the proceeds. Alternatively, they argued that given the unique circumstances — including Mr Giurina’s long delay in transferring the property and his history of litigation to prevent its sale — the Court should allow execution against the estate proceeds even if the estate remained technically unadministered.

Mr Giurina opposed the relief, contending:

(1) The proceeding was invalid because one plaintiff (an Owners Corporation) had not obtained a special resolution required under the Owners Corporations Act 2006 (Vic);

(2) As administration was ongoing, he had no legal or equitable interest in the property, and the plaintiffs’ costs orders were not made against him in his capacity as executor. He also asserted that potential fraud required further investigation before he could finalise the estate.

Findings and Procedural History:

  • Mr Giurina had repeatedly attempted to prevent the Sheriff’s sale of the estate property, claiming beneficial ownership. However, in multiple prior proceedings — both at first instance and on appeal — the courts had rejected his claims, finding the property remained part of the unadministered estate.
  • Courts had previously declared that Mr Giurina held the property as executor, not personally, and rejected attempts to lodge caveats over the title.

Key Legal Principle:

  • An executor does not acquire a beneficial interest in estate property until administration is complete. Until then, they hold property as executor, and beneficiaries only have a right to compel proper administration.
  • However, in some instances, the court may allow enforcement against estate assets where the executor’s conduct or the practical realities warrant such relief.

The Court reserved judgment following extensive affidavit evidence and written submissions, Deciding whether to grant declaratory relief and whether to direct the Sheriff to apply the proceeds of the sale in satisfaction with the plaintiffs’ costs orders under the relevant rules of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).

What Does “Completion of Administration” Mean?

The Court reaffirmed that the administration of an estate involves the executor performing their duties — collecting assets, paying debts and expenses, distributing legacies, and finalising accounts — following the Will.

Importantly, the administration of an estate does not necessarily end all at once. It may conclude concerning each asset at different times. Once an executor has fulfilled their duties about a particular asset, they cease acting in that capacity and instead hold the asset as trustee for the beneficiary.

Completion of administration is a question of fact to be assessed by reference to:

  • the passage of time since the testator’s death;
  • whether the executor has fulfilled their core duties;
  • the reason the executor continues to hold the asset;
  • whether there is evidence of assent or distribution (formal or informal); and
  • Preparation of final estate accounts.

The Decision 

In Giurina v Sheriff (Vic) [2024] VSCA 112 the Court of Appeal stated

The issue of the warrants by the Court is sufficient authority for the Sheriff to execute them. Indeed, the Sheriff has a statutory duty to execute warrants that have been issued. That duty can, of course, be affected by the grant of an interlocutory injunction, which may occur if an affected person has demonstrated that there is a serious question to be tried. But where such an injunction is not granted, the fact that the affected person makes an assertion about the operation of the warrants that has not to date been the subject of judicial decision does not prevent the Sheriff from executing the warrant.

The Court found completion or administration concerning Nacinovich’s property. Despite the long delay in transferring legal title, Giurina had performed the core executorial tasks relating to the house. As such, he held the property on trust as a beneficiary under the Will, with his equitable interest available to satisfy the judgment debt.

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