Coffey v O'Halloran - [2021] VSCA 29

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2020 0104

JOHN LAWRENCE COFFEY	Applicant
v
RUTH STANISLAUS O’HALLORAN	Respondent

---

JUDGES:	BEACH, NIALL, T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 February 2021
DATE OF JUDGMENT:	26 February 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 29
JUDGMENT APPEALED FROM:	[2020] VSC 649 (McMillan J)

---

WILLS AND ESTATES – Where no grant of probate despite death of deceased six years ago – Where executors in dispute over assets of estate – Where each executor alleges other in situation of conflict – Where one executor agrees to be passed over and seeks passing over of other executor and appointment of independent administrator – Where other executor objects to being passed over.

PRACTICE AND PROCEDURE – Proceeding determined without oral hearing – Proceeding determined on the papers – No cross-examination of deponents’ affidavits – Power of court to order hearing and determination on the papers – Whether appropriate for matter to be heard on the papers – Whether hearing on the papers gave rise to procedural unfairness – Whether hearing on the papers offended open court principle – Civil Procedure Act 2010, ss 7, 8, 9 and 47 – Supreme Court Act 1986, ss 129A and 129B.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Respondent	Ms R Grayson Morison	McNab, McNab & Starke

BEACH JA
NIALL JA
T FORREST JA:

Joan Jackman Coffey (‘the deceased’) died in February 2014, a little over seven years ago. She left a will dated 26 September 2008 (‘the will’). In the will, she appointed her daughter, Ruth Stanislaus O’Halloran, her son, John Lawrence Coffey, and her accountant, Robert Henry Wald, as her executors and trustees of her estate. In March 2014, Mr Wald executed a deed of renunciation.[1]
[1]While at [2] in Re Coffey; O’Halloran v Coffey [2020] VSC 649 (‘Reasons’), it is recorded that the deed of renunciation was executed on 25 March 2015, the deed was in fact dated 25 March 2014.

In March 2014, Ms O’Halloran and Mr Coffey engaged a solicitor, John Blanch, to prepare an application for a grant of probate of the will. Mr Blanch took a number of steps in preparation for the making of an application in accordance with his instructions. Over the ensuing years, however, no application was made. Ms O’Halloran and Mr Coffey dispute which of them is responsible for this delay and their consequential failure to obtain a grant of probate.

On 4 March 2019, Ms O’Halloran filed an originating motion in the Trusts, Equity and Probate List of the Supreme Court seeking relief against Mr Coffey and Mr Blanch. In her originating motion, and relying on s 15 of the Administration and Probate Act 1958 (Vic) (‘the Act’), Ms O’Halloran sought orders that:

(a) Mr Coffey show cause why he should not, within such time as the Court may specify, bring the will into Court and, by authorising and directing Mr Blanch to do so, either…

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: John Lawrence Coffey v Ruth Stanislaus O'Halloran [2021] VSCA 29
Case: [2021] VSCA 29
Decision Date: 26 February 2021

CaseChat Overview and Summary

The case of Coffey v O'Halloran involves a dispute between two executors over the assets of an estate that has not yet been granted a grant of probate, despite the deceased having passed away six years prior. The court was tasked with resolving the conflict between the executors, each of whom accused the other of being in a position of conflict. One executor sought to be passed over, as did the other executor, and they jointly requested the appointment of an independent administrator. The opposing executor objected to being passed over.

The primary legal issues before the court were whether it was appropriate to determine the proceeding on the papers without a hearing, whether such a determination caused procedural unfairness or contravened the open court principle, and whether the court's power to order a hearing and determination on the papers was properly exercised. The relevant statutes included sections 7, 8, 9 and 47 of the Civil Procedure Act 2010, and sections 129A and 129B of the Supreme Court Act 1986.

The court held that it was appropriate to determine the matter on the papers, as the evidence presented was not in dispute, and there was no need for cross-examination of the deponents' affidavits. The court found that there was no procedural unfairness, as both parties had an opportunity to present their cases and the matter was resolved on the basis of the evidence provided. The open court principle was not offended, as the court's decision was made in a transparent and reasoned manner. The court exercised its discretion under the relevant statutes to determine the proceeding on the papers, and the decision was upheld.

The court made orders appointing an independent administrator for the estate and passed over the two executors, recognising their conflict of interest and the need for an impartial party to manage the estate. The court also made orders for costs, determining that the proceeding was appropriately determined on the papers and that there was no basis for an oral hearing.

Orders