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:

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.

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.

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.

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

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.

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.

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…

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 Kempson v Davison

Details

AGLC: Kempson v Davison [2016] VSC 366
Case: [2016] VSC 366
Decision Date: 27 June 2016

CaseChat Overview and Summary

In the matter of Kempson v Davison, the dispute arose between the administrator of the estate of the deceased, Kempson, and Davison, who claimed an interest in the deceased's property. The case was heard in the Supreme Court of Victoria. The central issue before the court was whether the administrator, acting under the liberty to apply, could be granted an extension of orders to permit the sale of the deceased's property, which was currently occupied by Davison.

The legal issues encompassed the scope of the liberty to apply in the context of an administrator's actions and the appropriate conditions under which such extensions should be granted. The court needed to determine whether the administrator had a legitimate interest in securing vacant possession for the sale of the property and whether the interests of the claimants, such as Davison, were adequately protected.

The court held that the administrator ad colligenda bona had the authority to apply for an extension of orders to obtain vacant possession for the sale of the deceased's property, provided that the interests of all parties were fairly considered. The court referenced precedents such as Re Porteous and Dowdle v Hillier to support its decision. It concluded that the administrator's application was justified in this instance, balancing the need for a swift and efficient sale against the rights of any claimants to the property. The court granted the extension, allowing the administrator to proceed with the sale of the property with vacant possession.

Orders