Kempson v Davison

[2016] VSC 366

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S CI 2014 06557

PETER RUSTON KEMPSON (as administrator of the estate of GENEVIEVE DAVISON)	Plaintiff
v
MARC DOMINIC DAVISON	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 June 2016
DATE OF RULING:	27 June 2016
CASE MAY BE CITED AS:	Kempson v Davison
MEDIUM NEUTRAL CITATION:	[2016] VSC 366

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PRACTICE & PROCEDURE – Extension of orders sought by administrator ad colligenda bona pursuant to liberty to apply – Orders sought to allow sale of deceased property with vacant possession – Re Porteous deceased [1949] VLR 383 – Dowdle v Hillier (1949) 66 WN (NSW) 155.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R H Miller	Mason Black Lawyers
For the Defendant	Mr J Rizzi	The Probate Professionals

HER HONOUR:

1. The deceased died on 13 April 2014.  The defendant and his two siblings are the adult children of the deceased and, pursuant to the intestacy provisions, they each take an equal share of the estate.  The estate’s most substantial remaining asset in the estate is the deceased’s property at 1496 High Street, Glen Iris.  The defendant has lived in the property since 1994 when he returned to live there with the deceased.

1. After the deceased’s death, the defendant continued to live in the property two or more nights a week, as deposed by him in his affidavit sworn in March 2016.  His counsel asserted that this has changed recently but no reference to this by way of affidavit.  The plaintiff does not pay rent but claims that he pays the rates, insurance and utility bills for the property.  The plaintiff disputes that the defendant makes those payments.

1. Due to substantial differences between the defendant and his brother, on 24 March 2015, the plaintiff was appointed as the independent administrator ad collingenda bona of the estate of the deceased.  The grant was limited for the purposes of, inter alia, cleaning up the property in preparation for its sale by public auction and engaging certain people to ready the property for sale.  Liberty to apply was granted to the plaintiff in the orders.  The orders made in the limited grant foreshadow the sale of the property by the plaintiff.

1. On 9 March 2016, a full grant of administration was made to the plaintiff by the Registrar of Probates.

1. Notwithstanding the terms of the limited order, the property has not been sold and the defendant now refuses to vacate it, thereby frustrating any sale by the plaintiff. 

1. By summons filed on 19 May 2016, the plaintiff seeks an additional order be made to the limited grant that requires the defendant to provide vacant possession of the property within 28 days of 19 May 2016.

1. The defendant submits that the plaintiff’s application is procedurally flawed as it seeks to add an order to the limited grant when a full grant has now been made.  The plaintiff contends that the limited grant remains on foot for the purposes of the administration of the estate as contemplated by the order with liberty to apply being granted to him in the order. 

1. In my view, nothing turns on the defendant’s procedural point for a number of reasons.  The first is that where liberty to apply is expressly reserved or by implication, the effect is to permit persons having an interest under the order to apply to the court touching that interest in a summary way.  It enables the court to deal with matters that arise in the course of working out that order but does not enable it to make what is substantially a different order.[1]  The order now sought by the plaintiff is consistent with the orders already made in the limited grant and is directed towards the getting in the assets of the deceased’s estate, which necessarily includes the sale of the property. 

   [1]Re Porteous deceased [1949] VLR 383, 385; Dowdle v Hillier (1949) 66 WN (NSW) 155.

1. The second reason is that such an order may be sought as an incident of an administrator getting in and collecting the assets of an estate. Pursuant to r 59.01 of the Supreme Court (General Civil Procedure) Rules 2015, the Court may make such order as the case requires notwithstanding that the order had not been sought in the originating process.  Clearly the limited grant on its terms was predicated on a sale of the property in the future.  The plaintiff’s application does not involve a correction or variation of the order originally made but makes explicit what was implicit, namely, the sale of the property.  To the extent that a full grant has now been made, it may be said that those limited orders have been subsumed by that grant.  The administration of the estate is now being frustrated by the defendant’s position and it is that position that has forced the plaintiff to seek the assistance of the Court.

1. The third reason is that the overarching purpose of the Civil Procedure Act 2010 and the Rules of the Court require the parties to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute and each party has a duty to assist the Court to further the overriding purpose. 

1. For the avoidance of doubt, or of any alleged procedural irregularity or of any further delay in the administration of the estate, leave is granted to the plaintiff to make this application to seek a specific order making it clear to the defendant that he is required to vacate the property so that the plaintiff can administer the estate for the benefit of all the beneficiaries.

1. In addition to the procedural submission, the defendant also relies on his recent Part IV claim commenced on 11 May 2016.  The relief he seeks in that claim is either a proprietary interest in the Glen Iris property, such as a portable life interest or a right to reside in the property, or a right to purchase the property or further monetary provision.

1. His claim to a proprietary right might relate to his assertion that he became the deceased’s full time carer in 2000 or that he is without financial means, but it was not made entirely clear to the Court.  The defendant does not want the property sold until the determination of his Part IV proceeding as he contends that if it is sold, he will not be able to seek a proprietary interest in the property or a right to purchase it.  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.  The claim to purchase the property seems unrealistic in the context of the defendant’s assertions that he has limited income and no assets. 

1. The defendant also relies on a letter in February 2016 that he says suggests that the property should not be sold until the defendant’s Part IV proceeding is determined.  His reliance on his interpretation of the letter forms no basis for rejecting the order sought by the plaintiff.  In any event, after the February letter, 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.

1. The defendant also claimed that the plaintiff has prejudiced his Part IV claim because he made a distribution in March 2015 to the three beneficiaries when he had no power to distribute any part of the estate.  The defendant says that the resultant lack of cash in the estate will limit the options available to him in his Part IV proceeding.  His stance does not add anything of substance to this application and ignores the fact that the defendant received his share of the distribution.  

1. The defendant’s claim for what he considers to be proper provision over and above his entitlement to a one third of the estate on an intestacy has all the hallmarks of an ambit claim.  It is consistent with his resistance to the plaintiff completing the administration of the estate.  The defendant’s position pays no regard to the position of his two siblings and their entitlements under the intestacy provisions.  He has lately offered to pay rent pending the determination of the Part IV claim but nothing other than that statement was made by his counsel.  He has also ignored the fact that he has enjoyed the use of the property without any payment for his occupation for the past two or so years.

1. The defendant’s stance in relation to the estate has been difficult from the beginning.  It necessitated the appointment of the plaintiff as an independent administrator for the estate.  It is now more than two years since the death of the deceased and he continues to frustrate the orderly administration of the estate and cause additional costs to be incurred.  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.

1. The defendant has had notice of this application since 19 May 2016.  The application seeks that the defendant vacate the property within 28 days.  I am satisfied that the defendant has had sufficient notice of the orders sought.  Accordingly, I will order that the defendant vacate the property within 30 days of the date of this order.

1. Subject to any further submissions, my preliminary view as to costs is that the defendant should bear his own costs and the plaintiff is entitled to his costs of and incidental to this application on a trustee basis, such costs to be paid out of the defendant’s share of the estate.