Laird v Laird (No 2) - [2022] VSC 121

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…

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 Laird v Laird (No 2)

Details

AGLC: Laird v Laird (No 2) [2022] VSC 121
Case: [2022] VSC 121
Decision Date: 15 March 2022

CaseChat Overview and Summary

Laird v Laird (No 2) was a proceeding brought by a plaintiff seeking to compel a sale of property. The defendants resisted the sale until the trial. During the trial, interim orders were agreed upon that the defendants vacate the property. The plaintiff was unsuccessful in a separate claim for constructive trusts over the property, while the first defendant's equitable lien claim over the property remains to be determined. The appointment of the administrator of the plaintiff lapsed during the proceeding, and allegations were made against the administrator in their personal capacity. The court was required to determine the costs orders for the finalised claims and procedural orders for the extant claims.

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