Cocking v Cocking
[2025] VSC 474
•5 August 2025
| 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 personal representative as to three of a total of 8 undivided shares.
Harold, Denise, and Noel, and their predecessors in title have been in possession of rents of 710 OSR since at least March 2007. 630 OSR has been used by Harold and David or their associated businesses for farming since its acquisition.
Proceeding
David commenced this proceeding against Harold, Denise and Noel by filing a writ and general indorsement on 30 March 2022. The relief sought by David included a declaration that he was entitled to possession of 710 OSR, and orders for accounts and payment of his share of rents and profits from the property. David filed a statement of claim on 21 April 2023, pleading that claim in greater detail.
Harold, Denise and Noel filed a defence and counterclaim on 19 May 2023. In the counterclaim, they applied under s 225 of the PLA for an order that 710 OSR be sold and for division of the proceeds among the co-owners.
On 20 June 2025, David filed and served an amended statement of claim (‘ASOC’) to include further claims against Noel in his capacity as executor of Ruth’s estate. On the same day, Harold, Denise, and Noel filed an amended counterclaim adding an application for sale of 630 OSR.
This Judgment deals with the counterclaim and the orders for sale of the land. At the commencement of the trial, the parties provided a form of orders which resolved many of the issues in dispute. These reasons address the substantive issues which remain undetermined and those which were largely resolved during the hearing.
Provisions and principles
The application by Harold, Denise, and Noel to sell the land is made under div 2 of Part IV of the PLA. Section 228 gives the Victorian Civil and Administrative Tribunal the broad discretion to make any orders it thinks fit to ensure that a just and fair sale or division of land occurs. It is not in issue that the orders sought by Harold, Denise, and Noel in relation to the sale of the land are within the wide ambit of the discretionary power under s 228.
Division 4 of Part IV of the PLA gives the Court jurisdiction to hear an application made under that Part in the circumstances set out in s 234C. The relevant provision for present purposes is s 234C(4), which reads:
The Supreme Court and the County Court have jurisdiction to hear an application under this Part if—
(a)in any proceeding which has commenced in the Supreme Court or the County Court (as the case requires), the issue of co‑ownership of land or goods arises in the course of that proceeding; or
(b)in the opinion of the Supreme Court or the County Court (as the case requires), special circumstances exist which justify the Supreme Court or the County Court hearing the application.
In applying s 234C(4)(b), ‘special circumstances’ means circumstance in which ‘the matter which is the subject of the application is complex’.[1]
[1]Property Law Act 1958 (Vic) s 234C(5)(a).
The co-ownership of 710 OSR was pleaded by David in the ASOC as a material fact relevant to his claim for possession, accounts and payment of rents and profits. The co-ownership of 630 OSR was raised by the amended counterclaim in the context of the broader dispute between the parties in the proceeding. I conclude that in those circumstances, s 234C(4)(a) of the PLA is engaged, such that the Court has jurisdiction to hear the application to sell the land.[2]
[2]Li & Anor v Chao [2024] VSC 371, [29].
Further, I conclude for the following reasons that the Court has jurisdiction in accordance with s 234C(4)(b) of the PLA.
First, the nature and value of the land and the necessary arrangements for its sale add complexity. While the land has been used for farming, the sale value will be determined by its potential for development as part of the northern growth corridor of Melbourne. The arrangements for sale include engagement of specialist agents and consultants to prepare reports as part of the marketing process, terms of sale that extend up to and possibly beyond seven years, valuation advice to enable comparison of purchase tenders that may reflect different settlement periods, and the requirement for specialist legal representation in relation to both the marketing and sale of the land.
Second, there is a complex ownership history for the land. Both the properties are owned in part by the representatives of estates that cannot be finally administered until the sales are complete.
Third, sale of the land is relevant to resolution by agreement or determination of associated disputes between the parties.
Evidence
Brief oral evidence was given by David and Harold.
Additional witnesses called were:
(a) Kane Malcomson, real estate agent, Core Projects (Vic) Pty Ltd (‘Core Projects’);
(b) Victor Di Felice, solicitor, Sladen Legal;
(c) Bradley Papworth, valuer, Charter Keck Cramer; and
(d) Luiza Struska, solicitor for David, ConnectLaw Legal Services.
Dispute
The parties were agreed that the land be sold and that Core Projects be appointed to act as real estate agents on the sale.
Most of the matters in dispute in relation to the arrangements for and terms of the sale were resolved immediately prior to, or during the hearing of the application. The substantive matters that remain to be determined are:
(a) the settlement period on which 710 OSR should be marketed and offered for sale; and
(b) which solicitors should be appointed to act for the parties on the sale of the land.
Settlement period
630 OSR and 710 OSR are adjoining properties with a total size of 295.7 hectares.
In August 2023, Core Projects prepared a proposal for the marketing and sale of the land. Malcomson confirmed that Core Projects remains willing to accept an appointment as real estate agents for the sale of the land.
Malcomson said that the properties are within Melbourne’s metropolitan urban growth boundary, and more particularly the Beveridge southwest precinct structure plan (‘PSP’). He explained that according to a 10-year plan recently released by the State government, the PSP is expected to commence in the next two to four years. He said that a PSP usually takes three to five years to complete and be gazetted, after which the land becomes available for urban development.
Malcomson said that prospective purchasers of significant development land holdings will always try to link settlement to the time when the land can be developed. On that basis, he believed that the market would see an optimal settlement period for purchase of the land being five to seven years.
Malcomson said that services relevant to development of the land were likely to first be available from the north, that is for 710 OSR. If the properties were to be marketed with split settlement periods, he said he would recommend a seven year settlement period for 630 OSR.
Malcomson explained that the tender submitted by a prospective purchaser may not conform with the marketed settlement period. The terms submitted by a prospective purchaser may also differ between 630 OSR and 710 OSR. Malcomson was asked:
Whether or not it’s marketed [for a] five or seven year [term], based on this report, there will be high demand and a lot of tenders received?---The correlation between time and bidders is important on longer term transactions. In our experience, for every year that a developer needs to settle a property before their expectation of delivery, price reduces but also appetite for risk reduces. So what we see in the market is the shorter the terms that we ask for compared to when development is expected to occur, the smaller the buyer pool will become.
The parties agreed that the land should be marketed in accordance with option two proposed by Core Projects, which involves selling the land as a whole but with different settlement time frames for each property. Malcomson said that the proposed settlement periods of five years for 710 OSR and seven years for 630 OSR would likely maximise the return to the vendors from the sale of the land.
Malcomson was an impressive witness. There was no real challenge to his evidence, which I accept. On that basis, I conclude that the orders should provide for sale of the land in accordance with option two proposed by Core Projects.
Consultant reports
Malcomson said that a suite of reports might be required to address matters such as urban design, planning, service infrastructure and development cost estimates (‘consultant reports’). He said that some properties require more specialist reports, and that Core Projects generally determines what reports are to be obtained in consultation with the appointed consultancy firm and the client. He said that Spiire Australia Pty Ltd (‘Spiire’) is a multidisciplined tier one development consultant that is willing and able to prepare the consultant reports in this case.
Malcomson said there are two reasons why the consultant reports should be obtained by the vendor rather than by the prospective purchasers. First, when the task is undertaken by the vendor, Core Projects can be involved to ensure that the consultant reports present the property in the best possible light. Second, many prospective purchasers are time poor and may not have the opportunity to obtain necessary consultant reports within the sale period. The marketed land is competing against other sites being sold at the same time. Obtaining necessary consultant reports as part of the marketing process makes it easier for prospective purchasers to assess the land and increases the land’s attractiveness.
I was informed during the trial that Spiire agreed to provide the standard necessary consultant reports at a cost of $20,000.
I conclude that orders should be made allowing Core Projects to commission consultant reports at a cost of up to $20,000 from Spiire for the purposes of marketing the land for sale without the right of any party to object, and for further reports beyond the cost of $20,000 subject to the right of a party to object.
Appointment of Core Projects
The parties agree that Core Projects should be appointed sole agent for sale of the land by execution of an Exclusive Sale Authority. There is a minor disagreement about the period of appointment. David proposes nine months. Harold, Denise and Noel propose 11 months.
Malcomson described the stages of a marketing and sale campaign for the land as follows:
(a) a period of four to five weeks to prepare legal documents, consultant reports and marketing documents;
(b) a sale campaign period of five to six weeks; and
(c) a period of further negotiation following the close of the marketing campaign and submission of initial tenders. This period involves the short listing of bids and running a series of further rounds of negotiations to extract the highest and best price from the market, and finalising contract terms to secure an executed unconditional contract.
Malcomson said Core Projects recommends that any sale campaign close no later than the last week of October so that further negotiation of price and contract terms can be finalised no later than the second week of December. He said that negotiations should be avoided across the Christmas period because there is a high likelihood of issues and problems arising and because there is a natural loss of momentum in negotiations at that time. He said that the appointment of Core Projects would need to be made very soon for it to be possible to complete the marketing and sale of the land before Christmas.
There may be some delay as a result of my conclusion, for reasons that follow, that fresh solicitors should be appointed to represent the parties on the sale of the land. The tight timeframe and the possibility of unforeseen further delay means that the sale campaign may not occur this year. If the campaign commences in February 2026, an unconditional sale may not be achieved until late May or early June.
I conclude it is fair and just in the circumstances that Core Projects be appointed sole agents for a period of 11 months.
The orders should provide a time within which the land is offered for sale that takes into account that the sale campaign may not commence until February 2026.
Solicitors
Malcomson said that after Core Projects had prepared the sale proposal for the land, they were asked to provide the names of property lawyers that they considered would be suitable to represent parties. They proposed Sladen Legal and two other firms, who Malcomson said Core Projects had worked with in the past in their representation of landholders. He said that those three firms were well respected in the development space and in his experience provided industry-leading advice.
An arrangement was made for Harold, Denise and Noel to meet with representatives of each firm at the offices of Core Projects. After that meeting they communicated to David that Di Felice was their preferred solicitor to act for the vendors on the sale of the land.
David did not meet with representatives of the firms recommended by Core Projects. In around mid-2024 he communicated to Harold, Denise and Noel that he did not agree with the appointment of Sladen Legal.
In March 2025, Harold, Denise and Noel engaged Sladen Legal and instructed Di Felice to prepare a suite of draft documents in anticipation of being appointed as the vendors’ solicitors. In accordance with his retainer with them, Di Felice prepared draft access deeds, contracts of sale, exclusivity and due diligence deeds, section 32 statements and tender condition documents relevant to both properties.
Undoubtedly Di Felice has the expertise and experience required to act for the vendors on the sale of the land. He has worked exclusively in property law since 2004. For the last 10 to 12 years his area of practice has been large-scale complex property transactions and property development projects, many of which involved farmland that was to become or has become part of the urban growth fringe of Melbourne. Di Felice’s expertise is confirmed by Malcomson’s evidence.
David submitted that there were three reasons why Di Felice should not be appointed to act for the parties in the sale of the land. First, Harold, Denise and Noel selected Di Felice unilaterally in 2024 as the preferred solicitor. Second, his retainer to act for them placed Di Felice in a potential position of conflict if he was to act for all vendors on the sale of the land, which includes David. Third, Di Felice’s position of conflict was confirmed by him attending court voluntarily to give evidence in support of the orders sought by Harold, Denise and Noel to appoint Sladen Legal as the vendors’ solicitors.
The first and third issues may not be sufficient in combination to reject Harold, Denise and Noel’s application that Sladen Legal be appointed as the vendors’ solicitors. The second issue is of greater substance.
Di Felice said he did not consider that preparation of the suite of sale documents for Harold, Denise and Noel would result in any conflict of interest in acting for the vendors on the sale. He explained that it was necessary for there to be unanimity between the vendors on any instruction to be given to the vendors’ solicitors, that every communication from Sladen Legal would go to all vendors, and that any comments or instructions from any vendor on any issue would be shared with all vendors, eliminating the possibility of conflict.
Di Felice agreed that the selection of the vendors’ solicitors was very important because of the role those solicitors may play in dealing with disputes that might arise between co-owners during the process of sale. He said that Sladen Legal would make recommendations on the subject matter in issue, but that it was not the role of Sladen Legal to directly manage these disputes. Di Felice said that ‘[w]here we are engaged by a client group, we wouldn’t act with respect to a dispute between the members of that client group’.
Di Felice said that because David was not part of the client group that retained Sladen Legal earlier this year, the communications and draft sale documents were not shared with him. Di Felice said that:
(a) the documents were prepared so that the Court would have a starting point to make orders for the sale of the land;
(b) the preparation of the documents was largely a mechanical exercise, and most of the details in the documents were obtained externally by relevant searches; and
(c) the documents were standard for this type of transaction, and that it would be necessary to obtain instructions from all vendors in order to complete them.
Di Felice said that if a dispute erupted between vendors about whether to disclose a matter relevant to the land, for example the dumping of toxic waste, his advice to all vendors would relate to the legal obligation of disclosure. However, making a recommendation on the issue would not result in Sladen Legal being a party to such a dispute. As another example, he said that while he would make recommendations on why the structure of a proposed deal may not work or may not comply with certain requirements, the decision about whether to accept or reject the terms of the deal is a matter for the vendors.
The potential for conflict arises from the following circumstances. Di Felice acted for Harold, Denise and Noel by taking preparatory sale steps, knowing that the appointment of Sladen Legal was opposed by David. Di Felice confirmed that David has not been privy to the communications on that retainer, or to the documents that were prepared. It is self-evident that further disputes in relation to the sale of the land may erupt between David and Harold, Denise and Noel. I accept Di Felice’s evidence that his role would not involve managing such disputes, or acting for some vendors against others in relation to any issue in dispute. However, Di Felice’s role in relation to issues in dispute remains critical. He will be required to advise the vendors on contentious issues. The advice provided by Di Felice and the resolution of the potential issues may have a significant and variable effect on the rights and obligations of, and outcomes for, the individual vendors. The problem is that if Sladen Legal was appointed, Di Felice would come to that task having acted for Harold, Denise and Noel in respect of the subject matter of the dispute in circumstances where his appointment as the vendors’ solicitor was opposed by David.
I accept that there are efficiencies in both time and cost in appointing Sladen Legal as the vendors’ solicitors. However, I conclude that the potential for conflict is an insurmountable barrier to that appointment.
David proposed an alternative firm to act as the vendors’ solicitors. His identification of that firm was undertaken unilaterally, without consultation with Malcomson or Core Projects.
I conclude that the just and fair way to achieve independent and expert legal representation is to again ask that Malcomson and Core Projects nominate a panel of three firms who they consider have an appropriate level of expertise and experience for appointment as the vendors’ solicitors. The orders should provide an opportunity for the parties to nominate their preferred solicitor from that panel, and for Malcomson to choose in the event of disagreement.
Reserve price
Malcomson explained that in the context of disputes between the vendors and where the land was to be sold pursuant to court orders, it is appropriate that a valuer be appointed to determine the reserve price during the sale period.
Papworth has specialised in the valuation of subdivisional properties since 1996. He has prepared valuation reports dated 7 April 2025 for each property.
At the commencement of the trial, David expressed a concern that Papworth had a history of mainly representing or working for developers, and may therefore not be an appropriate person to fix the reserve for the land. Those concerns were not borne out by the evidence.
The second matter raised by David was that the vendors should not be excluded from the important decision about the reserve price. That concern was resolved on the basis that the orders will provide that the reserve determined by Papworth will be subject to objection by any vendor in accordance with the dispute resolution process provided by the orders. Ultimately, all parties were agreed on this outcome.
Costs
It was not in issue that the general practice in matters relating to the partition of property is that the costs be borne equally by the parties.
Harold, Denise and Noel submitted that in the circumstances of this case, it is just and fair that David be ordered to pay their costs on the counterclaim. In part they relied on evidence that they argued established that the refusal or failure by David to engage with them in relation to the sale of the land resulted in the need for the counterclaim and associated costs.
In response, David submitted that any delay on his part was for good reason, including the need to obtain advice and be satisfied as to the tax consequences to him of a sale. Those matters are part of the dispute in the principal proceeding that remains to be determined.
In those circumstances, I conclude that the costs of the counterclaim should be reserved until resolution or determination of the principal proceeding. Ultimately the parties agreed to that course.
Conclusion
I will give the parties an opportunity to be heard as to the final form of orders that will be made for sale of the land. The proceeding will be listed on 12 August 2025 to finalise the form of order resolving the counterclaim, and for a timetable to be set for determination of the principal proceeding.
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