| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST
S ECI 2020 02591
S ECI 2020 02406
S ECI 2020 03773
| BETWEEN: | |
| ELLEN DOUGLAS LAIRD (by Suzanne Lyttleton her administrator) | Plaintiff |
| v | |
| NEALE DOUGLAS LAIRD | First defendant |
| -and- | |
| STUART GRAEME LAIRD | Second defendant |
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JUDGE: | McMillan J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF RULING: | 15 March 2022 |
CASE MAY BE CITED AS: | Laird v Laird & Anor (No 2) |
MEDIUM NEUTRAL CITATION: | [2022] VSC 121 |
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COSTS — Where defendants resisted sale of property by plaintiff until commencement of trial — Where interim orders to vacate property agreed at trial — Where defendants unsuccessful in separate claims of constructive trusts over property — Where equitable lien claim by first defendant remains to be determined — Where appointment of administrator of plaintiff lapsed during the proceeding — Where allegations made against administrator in personal capacity — Costs orders made in finalised claims and procedural orders made for extant claims.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Bardoel & Adams in S ECI 2020 02591 and S ECI 2020 03773 K&L Gates in S ECI 2020 02406 | |
| For the First defendant | Mr S Hay QC and Ms R Grayson Morison | MST Lawyers |
| For the Second defendant | Mr D Connors | Mepstead Lawyers |
| For Mr L Vallance (as administrator of the estate of Ellen Douglas Laird, deceased) | Mr J Smith | Hicks Oakley Chessell Williams |
| For the non-parties | Mr R Wells | Davies Collison Cave |
HER HONOUR:
Introduction
On 18 June 2021 judgment was delivered in three proceedings[1] cited as Laird v Laird[2]. This ruling provides reasons for the orders to be made in each proceeding, including as to costs.
[1]S ECI 2020 02591, S ECI 2020 02406 and S ECI 2020 03773.
[2][2021] VSC 352 (‘Laird v Laird’).
Procedural history
On 8 May 2018, by order of the Victorian Civil and Administrative Tribunal (‘VCAT’), Ms Suzanne Lyttleton was appointed as Mrs Ellen Laird’s administrator. At that time Ellen was aged 91 years and lived on the family farming property at Rowallan Avenue, Harkaway (‘Harkaway’), with a team of carers providing 24 hour care, seven days a week. Ellen’s wish was to remain in her home at Harkaway until her death.
In due course, it became apparent to Ms Lyttleton that Ellen’s funds were running short and needed to be supplemented if Ellen was to remain in her home. Ms Lyttleton attempted to raise the requisite funds against Harkaway but met with obstruction from two of Ellen’s sons, Neale and Stuart.
In 2019, Neale lodged caveats on the two titles comprising Harkaway, claiming that Ellen held the property on constructive trust for him. Ms Lyttleton commenced a proceeding which resulted in Neale executing a removal of the caveats, in exchange for certain undertakings. In 2020, Ms Lyttleton attempted to obtain a reverse mortgage secured against Harkaway, however, Neale, as long term occupant of the property, would not sign…
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- AGLC
- Laird v Laird (No 2) [2022] VSC 121
- Case
- [2022] VSC 121
- Decision Date
CaseChat Overview and Summary
The court considered the costs incurred during the proceeding and the outcome of the various claims. The court found that the defendants' resistance to the sale until the commencement of the trial was unreasonable, and as such, the plaintiff was entitled to costs. However, the court also considered the fact that the interim orders to vacate the property were agreed upon during the trial, and as such, the costs incurred in obtaining those orders were to be borne equally by the parties. The court also found that the allegations made against the administrator in their personal capacity were without merit and awarded costs against the plaintiff for those allegations.
The court made orders for costs in relation to the finalised claims, with the defendants ordered to pay the plaintiff's costs of the proceeding up until the interim orders were agreed upon, and the parties to bear their own costs thereafter. The court also made procedural orders for the extant equitable lien claim, including an order for the first defendant to provide further particulars of their claim. The court found that the allegations made against the administrator in their personal capacity were without merit and ordered that those allegations be struck out. The court did not make any orders in relation to the lapsed appointment of the administrator.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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