Coffey v O'Halloran - [2023] VSCA 146

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0037

JOHN LAWRENCE COFFEY	Applicant
v
RUTH STANISLAUS O’HALLORAN	Respondent

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JUDGES:	WALKER and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	13 June 2023
DATE OF JUDGMENT:	16 June 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 146
JUDGMENT APPEALED FROM:	[2023] VSC 51 (Justice Moore)

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PRACTICE AND PROCEDURE – Appeal – Stay – Wills and estates – Eight year delay since death of testatrix – No application filed for a grant of probate – Delay occasioned by ongoing disputes between members of the family, in particular, between the applicant and the respondent – Order by trial judge, that the applicant and respondent be passed over as executors of the will, and that leave be granted to an independent administrator to apply for a grant of letters of administration with the will annexed – Application for stay refused.

Administration and Probate Act 1958, ss 15, 28; Supreme Court (General Civil Procedure) Rules 2015, rr 64.39, 66.16.

Asea 1 Pty Ltd v Rudyard Pty Ltd [2020] VSCA 122; Cross Country Realty Victoria Pty Ltd v Ubertas 350 William Street Melbourne Pty Ltd [2015] VSCA 347; Cellante v G Kallis Industries Pty Ltd [1991] 2 VR 653; Maher v Commonwealth Bank of Australia [2008] VSCA 122; Neate v Thoroughbred International Marketing Pty Ltd (2012) 34 VR 314.

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Counsel
Applicants:		In person
Respondent:		Ms R G Morison
Solicitors
Applicants:	In person
Respondent:	McNab, McNab & Starke

WALKER JA
KAYE JA:

The applicant applies for a stay of an order made by a judge of the Trial Division on 23 March 2023, the effect of which is that both the applicant and the respondent be passed over as executors of the will of their late mother, and that leave be granted to an independent administrator, Mr Lachlan Vallance, of Hicks Oakley Chessell Williams, to apply for a grant of letters of administration with the will annexed.
The applicant and the respondent are respectively the son and daughter of Joan Jackman Coffey (‘the deceased’), who died on 17 February 2014, leaving a will dated 26 September 2008. By the terms of that will, the deceased devised and bequeathed her estate, in differing proportions, in effect to each of her six children.
Since the death of the deceased, there has been considerable delay in the filing of an application for a grant of probate of the will, and no such application has, as yet, been filed. The delay has been occasioned by ongoing disputes between members of the family, and, in particular, between the applicant and the respondent, as to the content of the inventory of assets and liabilities, which is required to be filed with the application for probate. In addition, the parties have engaged in extensive correspondence concerning various issues relating to the administration of the estate, many of which have remained unresolved.
As a result of the impasse, the respondent issued an originating motion by…

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 Coffey v O'Halloran

Details

AGLC: Coffey v O'Halloran [2023] VSCA 146
Case: [2023] VSCA 146
Decision Date: 16 June 2023

CaseChat Overview and Summary

The case of Coffey v O’Halloran involved an appeal against a decision made in the County Court of Victoria regarding the administration of the estate of the deceased, Ms. Patricia O’Halloran. The central dispute arose from a significant eight-year delay in obtaining a grant of probate due to ongoing family conflicts, particularly between the applicant, Ms. Coffey, and the respondent, Mr. O'Halloran. The trial judge had ruled that neither Ms. Coffey nor Mr. O'Halloran would serve as executors of the will, and instead, an independent administrator would be appointed to apply for a grant of letters of administration with the will annexed.

The primary legal issues before the court were whether the trial judge’s order was correct and whether the application for a stay should be granted. The court had to consider the relevant provisions under the Administration and Probate Act 1958, particularly sections 15 and 28, alongside the procedural rules stipulated in the Supreme Court (General Civil Procedure) Rules 2015, specifically rules 64.39 and 66.16. Furthermore, the court examined precedents such as Asea 1 Pty Ltd v Rudyard Pty Ltd, Cross Country Realty Victoria Pty Ltd v Ubertas 350 William Street Melbourne Pty Ltd, Cellante v G Kallis Industries Pty Ltd, Maher v Commonwealth Bank of Australia, and Neate v Thoroughbred International Marketing Pty Ltd, to assess the appropriateness of the trial judge’s decision.

The court concluded that the trial judge’s order was well-founded, taking into account the prolonged delay and the ongoing disputes among family members. The court found that the trial judge had appropriately exercised their discretion by removing Ms. Coffey and Mr. O'Halloran from their roles as executors and appointing an independent administrator to proceed with the grant of letters of administration. Given the circumstances, the court deemed the trial judge's decision to be in the best interest of the estate and its beneficiaries. Consequently, the application for a stay was refused, affirming the lower court’s ruling.

Orders