Cocking v Cocking - [2025] VSC 474

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROPERTY LIST

S ECI 2022 01061

BETWEEN:

DAVID WILFRED COCKING	Plaintiff and defendant by counterclaim
and
HAROLD JAMES COCKING & ORS	First defendant and first plaintiff by counterclaim
DENISE EDITH COCKING (as executor and trustee of the estate of Eric Francis Cocking deceased)	Second defendant and second plaintiff by counterclaim
NOEL THOMAS COCKING (as executor and trustee of the estate of Ruth Elsie Cocking deceased)	Third defendant and third plaintiff by counterclaim

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JUDGE:	Keogh J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 and 30 July 2025
DATE OF JUDGMENT:	5 August 2025
CASE MAY BE CITED AS:	Cocking v Cocking
MEDIUM NEUTRAL CITATION:	[2025] VSC 474

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PROPERTY LAW — Orders for sale of land — Just and fair arrangement for sale — Appropriate period of settlement — Appointment of solicitors to act in the sale of the land — Jurisdiction of Supreme Court in co-ownership matters under the Property Law Act 1958 (Vic), Div 4 Part IV – Property Law Act 1958 (Vic) ss 225, 228, 234C.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	P Vout KC with E Fryar	ConnectLaw Legal Services
For the Defendants	L Hogan	McNab McNab & Starke Lawyers

HIS HONOUR:

Introduction

The parties are the proprietors of undeveloped land in Beveridge, Victoria. They seek orders under s 228(1) of the Property Law Act 1958 (Vic) (‘PLA’) for the sale of the land. However, they disagree about some of the orders that should be made governing the sale.

Background

The proceeding concerns two properties:

(a) 710 Old Sydney Road, Beveridge, certificate of title volume 8421 folio 635 (‘710 OSR’); and

(b) 630 Old Sydney Road, Beveridge, certificate of title volume 10112 folios 478 and 479 (‘630 OSR’)

(‘land’).

Francis and Ruth Cocking (‘Francis’ and ‘Ruth’ respectively) purchased 710 OSR in 1966 as tenants in common in equal shares.

Francis and Ruth’s four sons are the plaintiff, David Cocking (‘David’), the first and third defendants Harold and Noel Cocking (‘Harold’ and ‘Noel’ respectively) and Eric Cocking (‘Eric’). Francis, Ruth and Eric are each deceased. The second defendant, Denise Cocking (‘Denise’) is Eric’s personal representative.

The registered proprietors of 710 OSR as tenants in common are now:

(a)David, as to one of a total of 12 undivided shares;
(b)Harold as to one of a total of 12 undivided shares;
(c)Denise as Eric's legal personal representative as to one of a total of 12 undivided shares; [and]
(d)Noel as Ruth's legal personal representative as to nine of a total of 12 undivided shares.

David, Harold, Noel and Eric purchased 630 OSR in 1979 as tenants in common in equal shares. Noel sold his quarter share in 2000, an eighth to Eric and an eighth to Harold.

The registered proprietors of 630 OSR as tenants in common are:

(a)David, as to two of a total of 8 undivided shares;
(b)Harold as to three of a total of 8 undivided shares; [and]
(c)Denise as Eric's legal…

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 Cocking v Cocking

Details

AGLC: Cocking v Cocking [2025] VSC 474
Case: [2025] VSC 474
Decision Date: 5 August 2025

CaseChat Overview and Summary

Cocking v Cocking was a case that came before the Supreme Court of Victoria. The dispute involved co-ownership of a property, with the parties seeking an order for the sale of the land. The case hinged on determining what would constitute a just and fair arrangement for the sale, as well as the appropriate period for settlement. Additionally, the court had to consider the appointment of solicitors to act in the sale of the land.

The legal issues the court had to resolve were whether the existing arrangement for the sale of the co-owned property was just and fair, and if not, what alterations were necessary. The court also had to decide on the appropriate period for settlement, taking into account the interests of all parties involved. Furthermore, the court needed to determine whether the appointed solicitors were suitable to act in the sale of the property.

In reaching its decision, the court examined the provisions of the Property Law Act 1958 (Vic) and considered the relevant factors in determining a just and fair arrangement for the sale. The court held that the existing arrangement was not just and fair, as it did not adequately account for the interests of all parties. The court then outlined the necessary alterations to the arrangement, ensuring that it was equitable. Regarding the period for settlement, the court considered the circumstances of the case and decided on a reasonable timeframe. Finally, the court found the appointed solicitors to be suitable to act in the sale of the property, confirming their appointment.

The Supreme Court ordered the sale of the co-owned property under the amended arrangement, with the specified period for settlement. The court also confirmed the appointment of the solicitors to act in the sale. The court's decision aimed to ensure a just and fair outcome for all parties involved in the co-ownership dispute.

Orders