Damou v Damou
[2025] VSC 14
•31 January 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST
S ECI 2024 05712
BETWEEN:
| CHRIS DAMOU | Plaintiff |
| v | |
| NICK DAMOU | First Defendant |
| JOHN DAMOU (by his Administrator, State Trustees Pty Ltd (ACN 064 593 148)) | Second Defendant |
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JUDGE: | Gobbo AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 December 2024 |
DATE OF RULING: | 31 January 2025 |
CASE MAY BE CITED AS: | Damou v Damou & Anor |
MEDIUM NEUTRAL CITATION: | [2025] VSC 14 |
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SUMMARY RECOVERY OF LAND – Application under Order 53 – Framlingham Aboriginal Trust v McGuinness and Chatfield [2014] VSC 241 – Chan v Chan [2020] VSCA 40 – Where occupiers remain in occupation without the current registered proprietors’ consent – Relevance of related claim pursuant to Part IV of the Administration and Probate Act 1958 (Vic) – Whether related claim creates a proprietary interest – In the matter of the Will of Dorothea Agnes Baird [2019] VSC 59 – Lancaster & Anor v Conway & Anor [2022] VSC 117 – Kempson v Davison [2016] VSC 366 – Alderuccio v Alderuccio [2019] VSC 404 – Milillo v Konnecke (2009) ASTLR 235 – Crisp Order – Summary disposition under Order 53 refused pending further hearing.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N McOmish of counsel | Irvine Lawyers |
| For the First Defendant | Dr D Stamboulakis of counsel | David Davis & Associates |
| For the Second Defendant | Mr T Staindl of counsel | Davis Lawyers |
HER HONOUR:
The plaintiff, Chris Damou (‘Chris’) in his capacity as the executor of the estate of Panelis Damou (also known as Peter Damou) (‘Deceased’), is the registered proprietor of land situated at 40 Astley Street, Montmorency in the State of Victoria, Certificate of Title Volume 8319 Folio 377 (‘Property’). By way of originating motion filed on 22 October 2024, Chris seeks an order for possession of the Property pursuant to Order 53 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’).
The named defendants are Nick Damou (‘Nick’) and John Damou (‘John’). Nick and John are Chris’ brothers and are the only people occupying the Property. John is a person under a disability, who has lived at the Property for most of his adult life. John was born with Down Syndrome. John also suffers from anxiety disorders and has cataracts. John is on a disability support pension and is in receipt of a substantial package under the National Disability Insurance Scheme (‘NDIS’). Nick lives with John as his full-time carer.
In support of the application, Chris relies on:
(a) the originating motion dated 22 October 2024;
(b) his affidavit sworn 16 October 2024;
(c) his affidavit sworn 16 December 2024;
(d) the affidavit of Laurie Irvine sworn 16 December 2024;
(e) the second affidavit of Laurie Irvine sworn 18 December 2024; and
(f) his Counsel’s written outlines of submission dated 13 November 2024 and 17 December 2024.
Nick appeared at the hearing by his Counsel, Dr Stamboulakis, and did not contest an order being made against him personally. No affidavit material was filed by Nick.
John appeared at the hearing by his Counsel, Mr Staindl. He relied on two affidavits of Debra Anne Davis, the first sworn 21 November 2024 and the second sworn 11 December 2024, together with his Counsel’s written outline of submission dated 17 December 2024.
Although objection was taken by the plaintiff to Ms Davis’ affidavits on the basis that they contained inadmissible and otherwise speculative material, these objections were not pressed at the hearing before me. Had they been pressed, I would have allowed the affidavits to be read in their entirety as I was not satisfied there was any objectionable material contained in the affidavits.
Applicable law governing Order 53 applications
Order 53 of the Rules provides for summary proceedings for the recovery of land in certain circumstances.
Rule 53.01 of that Order provides for the application of the Order:
(1)Subject to paragraph (2), this Order applies where the plaintiff claims the recovery of land which is occupied solely by a person or persons who entered into occupation or, having been a licensee or licensees, remained in occupation without the plaintiff's licence or consent or that of any predecessor in title of the plaintiff.
(2)This Order does not apply where the land is occupied by a mortgagor or successor in title and the claim is made by the mortgagee or successor in title.
The balance of the Rule sets out the proper procedure for a proceeding under Order 53.
The principles applicable to a proceeding under Order 53 were summarised by Derham AsJ in Framlingham Aboriginal Trust v McGuiness[1] in the following terms (citations omitted):[2]
[1][2014] VSC 241 (‘Framlingham’).
[2]Ibid, [41] cited with approval in Chan v Chan [2020] VSCA 40, [55] (Tate JA) (‘Chan’) and Mercedes Mortgage Management Pty Ltd v Yi [2020] VSC 657, [11] (Matthews JR).
The authorities establish the following matters in relation to the operation of Order 53:
(a)It is intended to enable a speedy resolution in favour of the proprietor of land of a dispute whereby trespassers are keeping the proprietor out;
(b)It is intended to apply only in clear cases where there is no question to try;
(c)The existence of a factual dispute does not deny the applicability of Order 53 where it is possible to resolve the dispute readily and fairly.
(d)While an order for possession may be made notwithstanding that there is a factual dispute between the parties, such an order will only be appropriate if the Court is able to satisfy itself as to the material facts that bring the case within O 53;
(e) The jurisdiction should be exercised with great care;
(f)Where an issue does emerge, the judge has discretion whether simply to dismiss the proceeding, to determine the issue or cause the issue to be subsequently tried. This includes giving directions as to the further conduct of the proceeding or ordering the proceeding to continue as if begun by writ pursuant to Rule 4.07 of the Rules; and
(g)Where the Court gives judgment for possession under Order 53, it may grant a stay of execution.
In Chan v Chan (‘Chan’),[3] the Court of Appeal held, in respect of Order 53, that:[4]
…to protect against trespassers, that is, those who enter land without lawful authority or those who, having had lawful authority to enter land, remain in occupation when the license or consent to that occupation has been withdrawn. The procedure is only appropriate in a clear case, although it may be available where there is a minor factual dispute providing the dispute can be readily and fairly resolved by the judge.
[3]Chan (n 2).
[4]Ibid, [5] (Tate JA).
Summary of decision
Order 53 was enacted to facilitate the speedy recovery of land by the person entitled to possession of the land, and is targeted at squatters and other trespassers.[5] It is a summary procedure designed, on its terms, to enable summary recovery of land which is occupied by a person ‘who entered into occupation or, having been a licensee ... remained in occupation without the plaintiff’s licence or consent’.[6] As the order permits a summary determination, it is intended only for cases where there are no disputed questions of fact or substantial questions of law to be investigated. If the Court, in its discretion, decides to exercise the jurisdiction to resolve the issue, it should be undertaken with great care.[7]
[5]Super Jacobs Pty Ltd & Anor v Esera Faalogo & Ors [2019] VSC 778, [40] (Daly AsJ).
[6]Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 53.01(1).
[7]Melbourne Anglican Trust Corporation v Greentree [1997] VicSC 210, 4 (Vincent J); Max Moar & Quuenbridge Pty Ltd v Shazia Duman [2007] VSC 266, [2] (Pagone J).
For the reasons that follow, and having regard to the care with which the jurisdiction under Order 53 should be treated, and the discretion afforded to me to either dismiss the proceeding, determine the issue, or cause the issue to be subsequently tried, I consider that the issues emerging in this matter are not appropriately resolved by application of Order 53 at the present time. It follows that the relief sought in the proceeding should not be granted. However, for the reasons that follow, I do not propose to finally determine the application until such time as John’s application in S ECI 2024 06407 for leave to apply, out of time, for further provision from the estate of the Deceased, pursuant to Part IV of the Administration and Probate Act 1958 (Vic) (‘APA’) is determined (‘TFM Proceeding’).
Non contentious facts
On 29 June 1964, the Deceased was registered on the title of the Property.
The Deceased died intestate on 30 August 2019, the Property being the main asset of the Deceased’s estate. The other asset of the Deceased’s estate was a bank account containing $49,199.50. The Deceased was survived by this three sons, being the parties to this application. They are each one third beneficiaries of the Deceased’s estate under intestacy. John has lived at the Property, the parties’ parents matrimonial home, for most of his adult life. Whilst it was not clear how long Nick had resided at the Property, he currently resides there as John’s carer.
On 25 October 2022, Letters of Administration of the estate of the Deceased were granted to Chris.
By letter dated 25 July 2023, it was confirmed by Maurice Blackburn, previous solicitors for Nick, that Nick was residing at the Property with John. Nick and John continue to occupy the Property without Chris’ licence or consent in his capacity as executor of the Deceased’s estate. Chris, via his solicitors, has provided Nick and John with considerable notice and time to vacate the Property.
To this end, on 18 May 2023, Nick and John were advised that Chris proposed to sell the Property and requested access to the Property for the purpose of enabling it to be placed on the market for sale.
On 25 July 2023, Nick agreed that the Property should be sold and requested that no action be taken while he arranged for suitable accommodation for he and John.
On 9 August 2023, Nick was advised that Chris would permit him to remain at the Property until 9 November 2023.
On 29 January 2024, the Property was transferred into Chris’ name in his capacity as executor of the Deceased’s estate.
On 14 February 2024, Nick and John were requested to vacate the Property within 30 days and offered an interim distribution of $10,000.00 from the Deceased’s estate to assist them to relocate out of the Property.
On 28 February 2024, Nick indicated that he was experiencing difficulty finding alternate accommodation and was not prepared to enter into a time period to vacate the Property, proposing that each of he and John receive $15,000.00 from the Deceased’s estate to assist them to relocate out of the Property.
On 21 March 2024, Nick and John were again requested to vacate the Property within 30 days and offered an interim distribution of $15,000.00 from the Deceased’s estate to assist them to relocate out of the Property. An Order 53 application was foreshadowed in the event the offer was not accepted.
On 27 March 2024, Nick, on his own behalf and on behalf of John, stated that they intended to relocate out of the Property but could not agree or disagree to a 30 day period.
On 7 May 2024, Nick refused access to the Property for a real estate appraisal primarily due to John’s anxiety and behaviour issues.
On 3 July 2024, Chris was informed that State Trustees Limited (‘STL’) had been appointed as the administrator of John’s estate under an administration order of the Victorian Civil and Administrative Tribunal (‘VCAT’) dated 21 May 2024 pursuant to Part 3 of the Guardianship & Administration Act 2019 (Vic) (‘Administration Order’).
On 30 July 2024, Chris enquired, via STL, whether John intended to vacate the Property and provided further notice of the foreshadowed Order 53 application. STL did not provide a response to this enquiry.
On 4 September 2024, Nick and John, via their then solicitors Maurice Blackburn and STL, were issued with a notice to vacate, thereby formally revoking any licence or consent to occupy the Property. The notice to vacate was also sent to each of Nick and John personally by registered post on 6 September 2024.
On 2 October 2024, Maurice Blackburn advised Chris that they no longer represented Nick.
On 20 November 2024, the current legal representatives of Nick and John both filed their notices of appearance. In respect of John, the Court was informed of the following via email:
(a) STL applied to revoke the Administration Order and revocation orders were made by VCAT on 18 September 2024;
(b) John has Down Syndrome, intellectual disabilities, type 2 diabetes and cataracts, is almost non-verbal and suffers from anxiety such that any change of circumstances adversely affects his health and wellbeing. John’s health issues were not disclosed by Chris in his affidavit sworn 16 October 2024; and
(c) Ms Davis was engaged by Nick pursuant to an Enduring Power of Attorney made in 2013 (‘EPOA’) and has concerns that the EPOA is not valid given John’s medical conditions. Ms Davis indicated that an application is to be made to VCAT for determination as to whether the EPOA is valid, and if not, seek the appointment of an administrator to provide instructions.
On 22 November 2024, Chris’ application came before me. At that hearing, Chris, through his Counsel, maintained that the application should proceed relying on his written submissions which stated that this was a clear case with no factual or legal complexity. Chris contended that Nick and John were trespassers and that possession of the Property was required in order for Chris to sell the Property with vacant possession in order to complete the administration of the estate.
Against that position, and having heard from Counsel for John that he intended to make an application for further provision under Part IV of the APA, I ordered that:
(a) John file his foreshadowed TFM Proceeding by 6 December 2024;
(b) the parties file further affidavits and submissions; and
(c) the proceeding be adjourned to 18 December 2024.
On 27 November 2024, John (by his litigation guardian) filed the TFM Proceeding, by which he seeks further provision from the estate of the Deceased. The TFM Proceeding was, at the time of hearing before me, yet to be allocated a hearing date. Section 99 of the APA requires that an application for further provision be ‘made within 6 months after the date of the grant of probate of the will or letters of administration’. As it presently stands, John is out of time to make such an application unless leave is sought and obtained under s 99(2) of the APA. Leave is sought in the TFM Proceeding.
Plaintiff’s submissions
The essence of Counsel’s submissions on behalf of Chris was that both Nick and John had had considerable notice and time in which to vacate the Property and had been obstructive and dilatory as recorded in correspondence. Counsel noted that it had been over five years since the Deceased died and over two years since a grant of representation was made. Counsel reiterated the non contentious factual matters and chronology which I have set out above, and, in relation to Nick, noted Nick had consented to vacate the Property but had subsequently failed to do so.
Counsel otherwise submitted that the Property must be sold with vacant possession because, inter alia, bringing a family provision claim does not create an equitable interest in estate property and there are no funds left in the estate to pay liabilities, nor fund the costs of the separately represented and impecunious defendants in two, and perhaps even three, legal proceedings if Nick decides to issue his own foreshadowed family provision claim. In this regard, it was submitted that there was no evidence that a family provision claim has been made, or could be made, over the entire estate. It was further submitted that the TFM Proceeding is out of time with no evidence explaining the delay, meaning that any application for an extension of time will likely fail. Moreover, STL obtained orders from VCAT approving their decision to not bring a proceeding for further provision. It was further submitted that any claim John may have ought to be made against the substitute decision maker, STL.
Apart from the net proceeds of sale of the Property, Chris though his Counsel submitted that there were no liquid funds available to fund the legal costs of the estate, in two and possibly three proceedings (with Nick also foreshadowing a family provision claim). The estate funds of $49,199.50 have been dissipated by legal costs ($4,673.00 in probate costs, $24,145.36 in Order 53 costs and $1,711.10 in family provision costs to 13 December 2024, and $20,000.00 transferred into the solicitors’ trust account on 13 December 2024 to cover ongoing legal costs). Additionally, Nick is separately represented and has no funds to pay for litigation. John’s only resource is cash at bank of $9,345.54. The NDIS cannot be used to fund legal fees. John has accrued legal fees in this proceeding and in the TFM Proceeding. He has two sets of fees to pay – his solicitor and litigation guardian. The Court was informed that the only way John’s legal fees can be paid is from the estate.
It was otherwise submitted that this case was ‘near-identical’ to those where orders for possession were made, including where:
(a) there are no funds left to pay estate expenses, necessitating the sale of the property;
(b) the defendants have no proprietary interest. They only have a chose in action for due administration;
(c) regard must be given to the plaintiff’s duty to administer the estate; and
(d) the value of the property (and therefore the size of the estate) cannot be known until it is sold.
In this regard, it was said that there are analogous cases where an Order 53 application collides with a family provision claim – typically where an adult child is left an equal share of the estate but squats in the estate property thereby frustrating the administration.
Counsel for Chris principally relied on the decision of Keogh J in the matter of the Will of Dorothea Agnes Baird (‘Baird’)[8] submitting that Ierodiaconou AsJ considered she was ‘bound to follow’ and ‘gratefully adopt[ed]’ Keogh J’s reasons in Lancaster v Conway (‘Lancaster’),[9] presumably as suggestive that I too was bound to follow Keogh J’s decision. Regrettably, when I called on Counsel for Chris to address me on the factual circumstances of Baird, he was unable to do so.[10] In any event, I do not consider myself so bound as the factual circumstances in both Baird and Lancaster differ significantly from the facts before me.
[8][2019] VSC 59 (‘Baird’).
[9][2022] VSC 117 (‘Lancaster’).
[10]Transcript of Proceedings (18 December 2024) 2.12-2.31.
Baird concerned an application by the executor of an estate for orders to remove caveats lodged by the deceased’s son over two estate properties and an order for possession of one of the properties which deceased’s son occupied. The application was opposed on the basis that, as a beneficiary of the deceased’s estate, the son occupying the property wished to retain the properties and alleged he had an interest in the properties which entitled him to maintain the caveats and to remain in possession. Notably, in Baird, the son occupying the property had only given notice of an intention to make a claim against the estate for family provision pursuant to s 91 of the APA but had not actually filed a claim.
In his reasons, Keogh J opined in Baird that:[11]
[11]Baird (n 8), [20]-[23].
Michael submitted the residuary estate will consist solely of the Rhyll property, and in those circumstances, as residuary beneficiary, it was arguable he had an equitable interest in the property pursuant to Dorothea’s will which entitled him to maintain the caveats and to remain in possession of the Rhyll property.
I rejected that submission for the following reasons. First, as a residuary beneficiary Michael does not have a legal or equitable interest in a specific asset of the estate during the course of administration. A beneficiary only has a chose in action, or personal right, to compel proper administration of the estate by the executor. Further, the residue does not come into existence until administration of the estate is complete. Second, the proposed family provision claim does not give Michael an interest in the property. Third, Michael’s submission ignored the funeral and other estate expenses which continue to accrue. Peter has paid over $20,000 on behalf of the estate already and further expenses are accumulating. The legal costs to the estate in relation to the proposed family provision claim, which may be significant, are likely to be paid from the residue. Consequently, the residuary estate will amount to something less than the value of the Rhyll property.
Michael does not have an arguable case to an interest in the Rhyll property (or the Wonthaggi property). Accordingly, there is no serious question to be tried, and the caveats should be removed.
If it were necessary, I would have determined the balance of convenience favoured removal of the caveats because:
(a) the estate cannot be administered unless this occurs;
(b) Peter and Michael both have a significant interest in administration and distribution of the estate;
(c) estate liabilities are accumulating, and cannot be satisfied until the estate is administered and distributed; and
(d) Michael’s interest in residing rent free at the Rhyll property, to the extent it is a relevant matter to consider, is addressed by the stay I have, in effect, granted in respect of the order for possession.
In Lancaster, the Court was concerned with an application under Order 53 brought by the executors of a deceased estate. The property over which they sought possession was occupied by their sibling who had issued an application for further provision seeking 100 percent of the estate including the property. In Lancaster, like Baird, the Court was told that in order to administer and distribute the estate, the property needed to be sold. Before Ierodiaconou AsJ, the plaintiff submitted that:[12]
There is no serious question to be tried in respect of whether Mark holds a specific and proprietary interest in the whole of the land. The property is the only real asset of the estate. There are nine beneficiaries named in the testator’s will including her children, grandchildren and a charity. Mark may have an entitlement to more than 10% interest in the residuary. However, there is no prospect of Mark receiving 100% of the estate and the expenses of the estate. If he is successful, he will obtain further provision from the estate – not the whole of the property.
[12]Lancaster (n 9), [46(d)].
Counsel for Chris otherwise relied on Kempson v Davison,[13] where McMillan J stated:[14]
[13] The claim for a proprietary interest in the property seems ambitious in the context of a Part IV claim against his two siblings who have financial need and such a claim would deny his siblings any entitlement to the property or substantially delay their entitlements.
[14] … the plaintiff’s solicitor informed the defendant that the plaintiff could not effectively deal with the Part IV claim until the property was sold so that the size of the estate was established. This is undeniably correct.
[17] ... The defendant should not be allowed to impede the orderly administration of the estate purely for his own benefit, without regard to the interests of his siblings and the plaintiff’s duty to administer the estate. The continued occupation by the defendant of the property will impede the orderly process of the sale of the property.
[13][2016] VSC 366.
[14]Ibid, [13]-[14], [17].
Finally, Counsel for Chris took me to the decisions in Chan and Alderuccio v Alderuccio (‘Alderuccio’)[15] whereby orders for possession were refused where there were disputes over property ownership, significant factual disputes and significant time and money had been spent renovating property. Here it was submitted there are no disputed facts. This case, it was submitted, is unlike Chan and Alderrucio as John does not have an equitable interest – the property was purchased by the parties’ parents in 1964 and the mortgage discharged in 1973. No interest has ever been recorded on title. John was born in 1961 and has never worked. There is no evidence of a legal or equitable interest. The purported evidence of Ms Davis that John ’may have an equitable tenancy’ or ‘may have paid rent or substantially contributed to the renovation or repair of the property via his government pension or savings’ is inadmissible opinion, or otherwise speculation unsupported by fact. In any event, it was submitted that Chris has undertaken to preserve the net proceeds of sale to fund any such claims.
[15][2019] VSC 404.
Defendants’ submissions
No submissions against the principal relief were advanced by Dr Stamboulakis on behalf of Nick.
Counsel for John opposed the application submitting that it was remarkable that Chris was seeking the hearing and determination of this proceeding before a litigation guardian is properly appointed to represent John, who is quite clearly a person under a disability, and give instructions on his behalf. Whilst the need for the appointment of a litigation guardian was raised in Ms Davis’ affidavits, there was no formal application before me and Counsel did not press the matter at the hearing before me. The mere fact STL was appointed administrator for John, it was submitted, indicates that he lacks decision making capacity. In relation to this issue, Counsel for John noted the difficulties that had arisen for Davis Lawyers as:
(a) STL was administrator for John from 21 May 2024 until 18 September 2024, during which time STL determined not to proceed with a Part IV claim on behalf of John and thereafter, on its own application, and for unclear reasons, sought and obtained approval for that determination as well as a revocation of the Administration Order;
(b) at the time this proceeding was issued against John (by his administrator, STL), STL no longer had authority to act on John’s behalf;
(c) Ms Davis has expressed some concern over the validity of the EPOA; and
(d) Nick is an interested party in both this proceeding and the TFM Proceeding, and it would not be proper for him to represent John as litigation guardian.
Turning then to the substantive issues, Counsel for John submitted that the application should be properly understood as Chris seeking an immediate order to evict a severely disabled man from his long-time home, effectively in order to sequester money for legal fees that he has not yet incurred. Counsel submitted, ‘[t]o put it lightly, it is unreasonable behaviour … it’s reprehensible’.[16]
[16]Transcript of Proceedings (18 December 2024) 19.30-19.31.
Counsel for John took me to the facts of each of the decisions in Baird and Lancaster highlighting the factual differences between those matters and the matter before me. I will return to this below.
Counsel for John further submitted that prima facie, John has a strong claim in the TFM Proceeding. He is under a severe disability, receives full-time care, and has lived in the Property for most of his adult life. In such circumstances, there is a good argument that adequate provision for his proper maintenance and support requires an interest in the Property, whether that be a vested interest or some lesser proprietary interest (for example a life interest or a ‘Crisp Order’). It was submitted that a possession order would preclude John from obtaining such an order, and it would also preclude the parties resolving the TFM Proceeding by way of, for example, John (or Nick and John jointly) ‘buying out’ Chris’ interest in the estate.
It was further submitted that there was no urgency whatsoever in relation to Chris’ application and no good reason for this proceeding to be heard and determined summarily. Counsel emphasised that the Deceased died over five years ago. The grant of administration to Chris was made over two years ago. The apparent urgency on the part of Chris is illusory. There is no suggestion of the Property being damaged or of its value diminishing. In any case, the estate cannot be distributed until determination or resolution of the TFM Proceeding.
It was additionally submitted that the repeated allegation that there are no funds in the estate is factually incorrect. There are funds that rightly form part of the estate. The mere fact that they have been moved from an estate account to a solicitor's trust account does not mean that they are not rightly estate funds. Unless the entirety of the funds that have been transferred to the solicitor's trust account have been disbursed following invoices, there are estate funds that remain. There is, it was contended, a remarkable accumulation of funds being incurred by Chris in relation to both this proceeding and the TFM Proceeding. Counsel noted that there have been multiple invoices in relation to the TFM Proceeding when all that has occurred is the service of an originating motion and the filing of a notice of appearance. No summons or affidavit material has been filed. Counsel noted that in this proceeding $24,145.36 had been dissipated by legal costs to 13 December 2024 with a further $20,000.00 transferred into the solicitors’ trust account on that date to cover ongoing legal costs. Some of those funds still remain, and those that have been disbursed, are of course, subject to the Court's discretion on costs.
Chris, in his affidavit material, effectively states that John should be removed from his long-term home so that Chris can pay his lawyers, amongst other things, to defend the TFM Proceeding. Counsel for John urged that that argument is flawed as it wrongly assumes that:
(a) Chris will have all his costs met out of the estate of the deceased, regardless the position he takes in the proceeding;
(b) the approximately $50,000.00 in funds that formed part of the estate have been properly depleted and are unavailable to the executor, noting that there appear to be estate funds remaining in the trust account of his solicitors; and
(c) the proceeding cannot be resolved by way of settlement.
Analysis and consideration
The key issue for consideration is whether the Order 53 procedure is available in the circumstances of this case.
The principles relevant to whether the Court should exercise its discretion to grant an order for possession involve, first of all, recognition that the Court is given a discretion. The cases establish relevant considerations.[17] The power is intended to enable a speedy resolution in favour of the proprietor of the land subject to a dispute whereby trespassers are keeping the proprietor out. That is not an apt description of the present case.[18]
[17]Framlingham (n 1), [41] (Derham AsJ); appeal dismissed [2014] VSC 354.
[18]Gold Road v Platt [2019] VSC 714, [38] (Ginnane J).
Where the issue does emerge, the judge has a discretion whether to simply dismiss the proceeding, to determine the issue or cause the issue to be subsequently tried. This includes giving directions as to further conduct of the proceeding.[19]
[19]Ibid, [39].
I respectfully agree with and adopt his Honour’s reasons in Baird that, as a residuary beneficiary, a person does not have a legal or equitable interest in a specific asset of the estate during the course of administration. A beneficiary only has a chose in action, or personal right, to compel proper administration of the estate by the executor, with the residue not coming into existence until administration of the estate is complete. The existence of a Part IV claim under the APA does not alter the legal position. However, that is not, having regard to the factual matters before me, a complete answer to the Order 53 relief sought. I have considered the authorities in Baird and Lancaster and I accept the submission of Counsel for John that both authorities are distinguishable on their facts. My reasoning is as follows.
First, John is a person under a disability who presently lacks any form of alternate secure accommodation. These facts were not present in Baird or Lancaster. I otherwise observe that the Court maintains parens patriae jurisdiction which is intended to supplement the care and protection of vulnerable members of the community, including persons under a disability such as John. Whilst neither Counsel invited me to consider whether this discretionary jurisdiction ought to be exercised, I note that the existence of this jurisdiction, of which there is no doubt, was not a factor the Court was required to consider in its reasoning in Baird or Lancaster.
Second, John has a TFM Proceeding on foot where he is seeking further provision under s 91 of the APA. One of the grounds of relief which is sought in the TFM Proceeding is the making of a ‘Crisp Order’.
In Milillo v Konnecke,[20] Ipp J described a ‘Crisp Order’ in the following terms:[21]
A Crisp order is an order of the kind made by Holland J in Crisp v Burns Philp Trustee Company Ltd (NSWSC, 18 December 1979, unreported). Generally speaking such an order gives a plaintiff an interest for life in real property or in an interest in the property, with the right to it (should the need arise) for the purposes of securing, for the plaintiff’s benefit, more appropriate accommodation. In Court v Hunt (NSWSC, 14 September 1987, unreported) Young J (as he then was) said that a Crisp order was intended to provide flexibility, by way of a life estate, the terms of which could be changed to “cover the situation of the plaintiff moving from her own home to retirement village to nursing home to hospital”.
Thus, for example, a Crisp order may entitle a plaintiff, from time to time, to require the executor of a will to sell a home devised by the will, or otherwise owned by the estate, and to use the proceeds for purposes that may include purchasing another home for the plaintiff’s use and occupation, or providing accommodation for the plaintiff in a retirement village or similar institution, or in like accommodation providing hospitalisation and nursing care. The flexibility provided by such an order underlies the notion that a Crisp order confers a “portable life interest”.
[20](2009) ASTLR 235.
[21]Ibid, 243-244 [47]-[48], cited with approval in Thompson v Thompson [2015] VSC 706.
If a ‘Crisp Order’ was made in the TFM Proceeding, John may acquire an interest in the Property for life or a portable life interest. The circumstances of a party, under a disability, seeking a ‘Crisp Order’ were not present nor considered in either Baird nor Lancaster.
Third and most critically, it was conceded by Chris’ Counsel that if John’s TFM Proceeding is successful, the likelihood is that the only party who would have their interest adjusted adversely is that of his client, Chris.[22] That is to say, to the extent that the Court might make further provision for John it would come from Chris’ share of the estate. Nick and John who are in possession of the Property are collectively entitled to 67 percent of the estate without any further order having been made for their further provision. Given the concession made by Chris’ Counsel, if there is to be an adjustment to John’s interest, such that it is increased, that will come at the expense of Chris. In those circumstances, it was urged upon me by John’s Counsel that the Court could not presently rule out the possibility that an adjustment might see the prospect of some form of proprietary interest being granted in favour of John. That claim will depend on financial need. Before me, no financial need was identified by Chris and I was invited to infer that the only persons who might have financial need are the two people, Nick and John, who are in possession of the Property.
[22]Transcript of Proceedings (18 December 2024) 8.25-8.30.
Relief under Order 53 should not be made lightly and should certainly not be made on the basis of assumed entitlements or distributions under an intestate estate where there is a prospect that upon the further hearing of John’s TFM Proceeding, the Court may subsequently make a decision which alters those entitlements such that the Property does not in fact need to be sold. The making of an order under Order 53 at this stage would potentially restrict the Court’s power to do justice between the parties once it determines whether to grant leave to John to bring his application for provision out of time, and if that is allowed, to determine finally that application.
The procedure in Order 53 is only appropriate where it is readily apparent that a defendant does not have a current right to remain on the relevant land, including where any dispute as to the existence of such a right can be promptly and fairly determined summarily.[23] While such an order may be made notwithstanding that there is a factual dispute between the parties, such an order will only be appropriate if the Court is able to satisfy itself as to the material facts that bring the case within Order 53.
[23]Tolhurst Druce & Emmerson (a firm) v Maryvell Investments Pty Ltd [2007] VSC 271, [189]-[1793], [222] (Dodds-Streeton J).
In this case, I am unable to satisfy myself as to the material facts without having regard to John’s TFM Proceeding where a ‘Crisp Order’ is sought. That application, including for leave to proceed out of time, is yet to be heard. Chris is, in effect, requesting the Court to make an order of a serious nature under Order 53 based on hypothetical facts rather than actual findings of fact. That is not something I am prepared to do. There is no urgency in this matter such that it is not appropriate for this application to wait pending, in the first instance, John’s application for leave to proceed out of time in the TFM Proceeding.
The current case seems to me to be inappropriate for summary disposition under Order 53 at the present time. For that reason, I propose to adjourn the further hearing of the application for possession to a date to be fixed not before 30 April 2025. That will provide John with sufficient time to progress his application for leave under s 91 of the APA to bring his TFM Proceeding. If, for example, John is successful in obtaining leave to proceed with his TFM Proceeding, making an order for possession may detract from any final relief granted. If, however, John’s application for leave fails, then Chris’ application before me will no doubt be looked upon more favourably when it returns to Court. In any event, John should ensure that all appropriate steps are taken by him to progress and, if necessary, expedite the hearing of his application under s 91 of the APA.
The parties are directed to confer as to an appropriate form of order to give effect to these reasons, including in respect of the question of costs, and the questions of whether any conditions should be imposed upon the granting of a stay and/or the adjournment of the application pursuant to Order 53. In the event the parties are unable to reach agreement about those matters, the matter will be listed for a brief further hearing and the parties will be required to set out their respective positions in short written submissions.
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