Bothmann v White - [2015] VSC 247

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2013 4399

CHRISTA BOTHMANN	Plaintiff
v
CLIVE WILLIAM WHITE (as one of the Executors of the Estate of Karl Heinz Anton Jackle, deceased) and MARCUS JULIUS JACKLE	Defendants

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	20 May 2015
DATE OF JUDGMENT:	3 June 2015
CASE MAY BE CITED AS:	Bothmann v White
MEDIUM NEUTRAL CITATION:	[2015] VSC 247

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SETTLED LAND ACT 1958 (Vic) – Application by tenant for life for sale of property – Sale opposed by remaindermen – Whether property is ‘settled land’ within the meaning of s 8 of the Settled Land Act 1958 (Vic) – Whether property is subject to a ‘trust for sale’ within the meaning of s 18 of the Property Law Act1958 (Vic) – Whether applicant a tenant for life or holds a mere right of residence – Royal Melbourne Hospital & Ors v Equity Trustees Ltd (2007) 18 VR 469 and Re Hoppe deceased [1961] VR 381 considered and applied – Relevant discretionary considerations – Application granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R H Miller	Mason Black Lawyers
For the First Defendant	Mr G Burns	Oakleys White
The Second Defendant appeared in person

HER HONOUR:

Ms Christa Bothmann was the long-time de facto partner of Mr Karl Jackle (‘deceased’). The deceased died on 15 May 2012. In his will dated 30 June 1995 (‘Will’), the deceased appointed Ms Bothmann and the first defendant, Mr Clive White, a solicitor, as executors of the Will. Probate of the Will was granted on 21 February 2013. Clause 3 of the Will provides that:

I GIVE DEVISE AND BEQUEATH unto my trustees the whole of my estate of whatever kind and wherever situate UPON TRUST as follows:
(a)to hold the whole of my estate and interest in all my lands situate in the Parish of Dumbalk and known as ‘Schemmerberg’ Stony Creek and being lands described in Certificate of Title Volume 9818 Folio 610 for my friend CHRISTA BOTHMANN to have the use and occupation thereto and to receive the net income therefrom for her lifetime she during such time being responsible for payment of rates and taxes, attending to maintenance to maintain the property in a proper and tenantlike manner and to maintaining an appropriate insurance coverage against fire on the property to a practical standard approved by my trustees and on the death of my said friend I DIRECT that such lands shall be held for my children MARCUS JULIUS JACKLE and BRITTA MARIA JACKLE as tenants in common in equal shares;
(b)to hold the whole of the then residue of my estate to sell call in and covert such parts thereof as shall not consist of money at my death with power to postpone the sale calling in and conversation of the whole or any part or parts of my real or personal estate during such period as my trustees may…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bothmann v White

Details

AGLC: Bothmann v White [2015] VSC 247
Case: [2015] VSC 247
Decision Date: 3 June 2015

CaseChat Overview and Summary

In the matter of Bothmann v White, the primary dispute revolves around the sale of a property under the provisions of the Settled Land Act 1958 (Vic). The applicant, Bothmann, a tenant for life of the property, sought an order for the sale of the property, a request opposed by the remaindermen. The matter was adjudicated by the Victorian Supreme Court, which was tasked with determining whether the property in question constituted "settled land" under section 8 of the Settled Land Act 1958 (Vic) and whether it was subject to a "trust for sale" under section 18 of the Property Law Act 1958 (Vic). Additionally, the court had to ascertain whether Bothmann was a tenant for life or merely held a right of residence.

The legal issues before the court encompassed several critical determinations. Firstly, it had to be established if the property was classified as settled land, which would then necessitate the court's intervention under the Settled Land Act. Secondly, the court needed to ascertain if there existed a trust for sale that would allow for the property to be sold. The court also had to clarify Bothmann's rights over the property, distinguishing between a tenant for life and someone with a mere right of residence. The decision hinged on the interpretation of relevant statutes and case law, specifically considering Royal Melbourne Hospital & Ors v Equity Trustees Ltd (2007) 18 VR 469 and Re Hoppe deceased [1961] VR 381. These cases provided guidance on the application of discretionary considerations in such disputes.

Upon examining the statutory definitions and relevant case law, the court found that the property indeed qualified as settled land, and a trust for sale was applicable. The court further determined that Bothmann was a tenant for life, thereby granting him the right to apply for the sale of the property. The discretionary factors considered included the interests of all parties involved and the appropriateness of the sale in the given circumstances. Consequently, the court granted Bothmann's application for the sale of the property, taking into account the statutory and equitable principles that guided its decision.

The final orders of the court mandated the sale of the property, recognising Bothmann's status as a tenant for life and his right to apply for the sale under the Settled Land Act 1958 (Vic). The court's decision was premised on a thorough analysis of statutory interpretation and the application of relevant case law, ultimately reflecting the discretionary considerations pertinent to the case.

Orders