Lancaster v Conway
[2022] VSC 117
•11 March 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST
S ECI 2021 03831
| KAREN PATRICIA LANCASTER (IN HER CAPACITY AS EXECUTOR OF THE ESTATE OF SHIRLEY IRENE CONWAY) & ANOR (according to the attached Schedule) | Plaintiffs |
| v | |
| MARK ANDREW CONWAY & ANOR (according to the attached Schedule) | Defendants |
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 March 2022 |
DATE OF JUDGMENT: | 11 March 2022 |
CASE MAY BE CITED AS: | Lancaster & Anor v Conway & Anor |
MEDIUM NEUTRAL CITATION: | [2022] VSC 117 |
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LAND – Recovery of possession – Application for summary possession allowed – Whether defendant is licensee or tenant at will – A claim pursuant to Part IV of the Administration and Probate Act 1948 does not create a proprietary interest - Framlingham Aboriginal Trust v McGuiness [2014] VSC 241 – Chan v Chan [2020] VSCA 40 – In the matter of the Will of Dorothea Agnes Baird [2019] VSC 59 – Alderuccio v Alderuccio [2019] VSC 404 - Kempson v Davison [2016] VSC 366 - Parker v Mielicki [2003] VSC 263 - Wood and Anor v Mclean and Anor (2010) 31 VR 12 - Mataska v Browne [2013] VSC 62- Supreme Court (General Civil Procedure) Rules 2015 Order 53, Rule 4.07.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr B Fry | Whyte Just & Moore |
| For the Defendant | Mr S J Gannon | Shine Lawyers |
| No appearance for the Second Defendant |
TABLE OF CONTENTS
Application.......................................................................................................................................... 1
Evidence............................................................................................................................................... 1
Background......................................................................................................................................... 1
Applicable principles........................................................................................................................ 5
Analysis................................................................................................................................................ 7
Is Mark a tenant at will or licensee?........................................................................................... 7
Should orders for summary possession be made?................................................................. 10
Conclusion......................................................................................................................................... 18
HER HONOUR:
The plaintiffs, Karen Lancaster and Gary Conway, are the executors of a deceased estate, and they seek possession of property of the estate. The property is currently occupied by their sibling, Mark Conway, who is the first defendant, and perhaps also by a stranger, the second defendant.
Application
The plaintiffs’ application is made pursuant to Order 53 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’). As discussed below, Order 53 is a summary procedure for possession of land. The subject property is located in Hamlyn Heights and is the former family home of the deceased, Shirley Conway. It is described by volume and title number in the originating motion (the ‘property’).[1]
[1]Plaintiffs’ originating motion filed 18 October 2021.
To avoid confusion, I shall refer to parties by their first names. I shall refer to Shirley Conway as the ‘testator’. I shall refer to Karen and Gary collectively as the ‘executors’.
Evidence
Service upon both defendants is proven by the two affidavits of Carl Drought, process server, sworn on 2 November 2021.
The executors rely on the affidavits of Gary Conway sworn on 13 October 2021 (‘first Gary affidavit’)[2] and 23 February 2022 (‘second Gary affidavit’).
[2]An ex tempore ruling was given on 1 March 2022 ruling that some parts of the first Garry affidavit are inadmissible.
Mark relies on his affidavit affirmed on 16 February 2022 (‘Mark’s affidavit’) and the affidavit of his solicitor, Michelle Trost, affirmed on 28 February 2022.
Background
The testator’s surviving children are Karen Lancaster, Gary Conway, Mark Conway, and Glenn Conway.[3]
[3]Exhibit ”MAC-01” to Mark’s affidavit, 2-3.
The testator left a will dated 14 May 2012.[4] A grant of probate was issued on 21 May 2021.[5] Karen and Gary are the executors of the testator’s estate.[6]
[4]Exhibit ”GJC-1” the first Gary affidavit.
[5]Ibid.
[6]Mark’s affidavit, [6].
The testator was the sole registered proprietor of the property.[7] The registered proprietors of the property are now the executors.[8]
[7]Exhibit ”GJC-1” to the first Gary affidavit, 6.
[8]Certificate of title, volume 08194 folio 375, produced 1 March 2022.
The testator resided at the property until she later moved into a nursing home.[9]
[9]Ibid, 6.
Whilst the testator was residing at the property, Mark moved in to reside with her. He deposes that he has lived at the property since 2013.[10] Mark deposes that he moved into the property because of financial struggles.[11] Mark deposes that, while residing with the testator, they discussed him eventually purchasing the property. He deposes they discussed that, in the meantime, he would contribute to expenses associated with the property by paying for water, electricity, and gas.[12] Mark deposes that he never paid rent to live at the property and at no time did the testator ask him to contribute in that way.[13] Mark deposes that in 2014, he and the testator agreed that in return for living at the property, Mark would assist around the house and care for her.[14] He deposes that he always attended to the general maintenance of the property, including mowing the lawns and maintaining the gardens.[15]
[10]Mark’s affidavit, [12].
[11]Ibid, [13].
[12]Ibid, [14].
[13]Ibid, [15].
[14]Ibid, [21].
[15]Ibid, [30].
In about April 2016, the testator became a resident at Costa House: Lara Nursing Home and Aged Residential Care (‘Costa House’). From May 2016, the testator was required to pay Costa House a basic daily fee on the basis of her income and an asset test.[16]
[16]Ibid, [27]; First Gary affidavit, [6].
On about 4 June 2018, State Trustees Limited (‘State Trustees’) became the testator’s administrator.[17]
[17]First Gary affidavit, [7].
The testator died on 22 January 2021.[18]
[18]Exhibit ”GJC-1” to the first Gary affidavit, 1.
Gary deposes that Mark and the second defendant, Anton Gurisibic, reside at the property.[19] Mark’s counsel submitted that Anton no longer resides at the property, although, counsel conceded there was no evidence in support of that. Anton was certainly at the property when he was served with documents in this proceeding, namely on 30 October 2021.[20] The nature of Anton’s residence in the property is entirely unexplained by Gary or Mark.
[19]First Gary affidavit, [8]-[9].
[20]Affidavit of Carl Drought, sworn on 2 November 2021.
On 21 September 2020, State Trustees made an application to the Victorian Civil and Administrative Tribunal (the ‘Tribunal’), pursuant to s 64(1) of the Guardianship and Administration Act 2019, and sought advice about the:
- scope of the administration order dated 11 May 2018 or
- administrator’s use of the property under the administration order. [21]
[21]Exhibit ”GJC-1” to the first Gary affidavit, 11.
On 30 October 2020, the Tribunal made orders approving sale of the property by State Trustees to ensure the testator did not fall into financial jeopardy.[22]
[22]Ibid, 11-12.
Gary deposes that despite multiple warnings to vacate and being put on notice that the executors wish to sell the property, Mark still resides at the property and has not, since the testator’s death, made any payment towards rent or expenses.[23]
[23]First Gary affidavit, [26].
Mark deposes that, in January 2021, he recalls speaking to the executors regarding their desire to sell the property. Mark deposes that he could not understand why he would need to move out before it was sold and that he had said this to the executors on different occasions.[24]
[24]Mark’s affidavit, [55].
On 26 April 2021, the executors’ solicitors, Whyte Just & Moore, in a letter to Mark, sought confirmation of his intention to move out of the property by no later than 30 May 2021.[25] Mark responded by email on 28 May 2021 stating that he was seeking legal advice.[26]
[25]Exhibit ”GJC-1” to the first Gary affidavit, 13.
[26]Exhibit ”GJC-1” to the first Gary affidavit, 14.
Mark deposes that at the end of June 2021 he engaged Hutchinson Legal to act on his behalf in respect of the testator’s estate.[27] Mark deposes that he was told by his lawyer at Hutchinson Legal that she had responded to the letters from Whyte Just & Moore in July 2021 and made enquiries about the testator’s will.[28]
[27]Mark’s affidavit, [59].
[28]Ibid, [60].
Mark deposes that he was unable to attend an appointment with Hutchinson Legal due to the COVID-19 pandemic. Mark deposes that in August 2021, Hutchinson Legal told him they were unable to assist him.[29]
[29]Ibid, [61]-[62]
Mark deposes that in August 2021, the executors had arranged for a real estate agent to list the property for sale.[30] Gary deposes that Mark initially seemed to cooperate with the real estate agent, however, when trying to arrange photography and listing of the property Mark was unresponsive and the property could no longer be placed on the market.[31]
[30]Ibid, [67].
[31]First Gary affidavit, [29].
Gary deposes that as the property is the only significant asset of the testator’s estate, the will requires the sale of the property in order to make distributions to the specified beneficiaries in accordance with the testator’s wishes.[32]
[32]Ibid, [30].
Mark deposes that in September 2021, he sought to engage a new solicitor and engaged Shine Lawyers.[33] On 7 September 2021, Shine Lawyers, in a letter to Whyte Just & Moore, sought a copy of the grant of probate and all previous wills of the testator.[34]
[33]Mark’s affidavit, [69].
[34]Exhibit ”MAC-01” to Mark’s affidavit, 11.
Mark deposes that on 19 October 2021, he filed an application seeking further provision from the testator’s estate for proper maintenance and support pursuant to Part IV of the Administration and Probate Act 1948.[35] I shall refer to this as the ‘Part IV proceeding’. Mark deposes that the inventory of assets and liabilities filed in support of the grant of probate includes the property, and the testator’s personal effects and cash.[36] Mark deposes that he is seeking 100% of the estate, including the property.[37]
[35]Exhibit ”MAC-01” to Mark’s affidavit, 16-20.
[36]Exhibit ”MAC-01” to Mark’s affidavit, 18-20.
[37]Mark’s affidavit, [79].
Gary deposes that the executors have incurred liabilities in the administration of the testator’s estate and, consequently, the residue of the estate will be less than the value of the property, which will need to be realised before the liabilities of the estate can be paid.[38] The inventory of assets and liabilities lists the property as the only real estate. The assets total $555,971.58 which includes the property and the testator’s personal estate. The inventory does not provide for any liabilities.[39]
[38]Second Gary affidavit, [6].
[39]Exhibit ”MAC-01” to Mark’s affidavit, 18-20.
Applicable principles
Order 53.01 of the Rules follows.
Application of 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.
In FramlinghamAboriginal Trust v McGuiness,[40] Derham AsJ held:
[40][2014] VSC 241, upheld on appeal Framlingham Aboriginal Trust v McGuiness and Chatfield [2014] VSC 354 (Ginnane J).
Order 53 creates a special procedure for the summary recovery of land in certain restricted circumstances…
The words of Rule 53.01(1) make it plain that the pre-requisites to the application of Order 53 are that the person or persons in occupation of the land are –
(a) a person or persons who entered into occupation without the plaintiff’s licence or consent or that of any predecessor in title of the plaintiff; or
(b)a person or persons who, 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.
Thus, a tenant holding over after the termination of the tenancy is not within either category and the service of a notice on the tenant purporting to determine the holding over does not alter that position. That is because the tenant to whom such a notice is given entered into occupation by licence or consent, and so is not within paragraph (a), and paragraph (b) does not apply because the tenant is not a person who was once a licensee.
The power to give summary judgment for possession is similar in nature to the power to give summary final judgment under Rule 22.02 of the Rules. That power should be exercised with great care and should never be exercised unless it is clear that there is no question to be tried. The need for exceptional caution in exercising the power is the subject of numerous observations of courts in this country.
An example of a case where argument of an extensive kind did demonstrate that a plaintiff was entitled to summary possession of land is Melbourne Anglican Trust Corporation v Greentree.[41]
[41]Ibid, [38],[39]-[40],[42], [45] (citations omitted).
Derham AsJ summarised the authorities relating to the operation of Order 53, which I adopt.
(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.[42]
[42]Ibid, [41] (citations omitted).
In Chan v Chan,[43] the Court of Appeal applied the principles above. Chan concerned a property dispute between siblings. The Court of Appeal held that Order 53 was not the appropriate procedure. Tate JA (with whom Maxwell P and Forrest JJA agreed), held “that Order 53 is not available nor appropriate in the circumstances of the case… [and the] matter, if it is to proceed, ought to proceed to trial and be commenced by a writ with a statement of claim”.[44]
[43][2020] VSCA 40 (‘Chan’).
[44]Chan, [92], [94].
In Chan the Court of Appeal referred to Alderuccio v Alderuccio.[45] In that authority, it was held that Order 53 was not applicable in the circumstances there, which included self-represented parties and allegations of a constructive trust .
[45][2019] VSC 404 (‘Alderuccio’).
Analysis
I will allow the application made under Order 53 for reasons outlined below. Turning now to the first question.
Is Mark a tenant at will or licensee?
Mark says that there is no jurisdiction to make orders pursuant to Order 53 because he occupies the property as a tenant at will. Mark says he had exclusive possession of the property when the testator ceased to live there. The Tribunal’s order for sale is not an order for possession. Mark concedes that if there was a tenancy, it has ended. Mark says he has never occupied the property as a licensee. Order 53 applies to licensees and former licensees. It does not apply to tenants or those who have been tenants. Mark says if there is a controversy as to whether he is a tenant or licensee, then the issues are not clear cut, and accordingly, should be resolved at trial, not summarily.
The executors that the hallmark of a tenancy is exclusive possession and Mark has never had exclusive possession. He cohabited with the testator. At no time did he have any enforceable right of possession against her. The executors say such a right is an essential part of the leasehold interest. At best, Mark had permission to reside.
Turning now to Chan, upon which Mark relies. The executors say it is not applicable. In Chan, Tate JA (with whom Maxwell P and Forrest JA agreed), held that it was arguable the appellants enjoyed a tenancy at will, and that was sufficient to displace the operation of Order 53.[46] Her Honour held that “the question of whether [the appellants] were tenants at will or licensees would require significant exploration of the facts and… would warrant the matter being sent off to trial”.[47]
[46]Chan, [78].
[47]Ibid.
In respect of a tenancy at will, Tate JA held:
When a person is given an uncertain interest in premises, the law may presume a tenancy at will. A tenancy at will may come into existence when, for example, the tenant takes possession of the property in question with the landlord’s consent without paying rent…
…a tenant at will has a right to exclusive possession during the currency of the tenancy…[a tenancy at will] is terminable at any time by demand of possession, express or implied…
While the position of a tenant at will has been described as somewhere between a lessee and a licensee, it is accepted that tenants at will are not licensees, licensees not being entitled to exclusive possession.[48]
[48]Ibid, [73], [74], [76] (citations omitted).
If Mark occupied the property as a tenant at will, then unless there was subsequently a licence for him to remain in the property, and he remained in the property after the licence came to an end, Order 53 is not applicable.
Here, I do not consider it arguable that Mark occupied the property as a tenant at will. Critically, there is no evidence that he ever had exclusive possession of the property. Mark has provided an affidavit and does not attest to this. He cohabited the property with his mother. He deposes that he moved in with her because he was struggling financially, and:
Upon my return to the family home Mum and I discussed me eventually purchasing the home from her, however, in the meantime, I was to contribute to the expenses associated with the property by paying for the water, electricity and gas.
I never paid rent to live at the Property and Mum at no time asked me to contribute in that way.
I had a mutually loving and supportive relationship with my mother throughout my life.
In return for Mum’s offer for me to live at the Property in 2014 it was agreed that in return I was to assist around the house and provide care for Mum.[49]
[49]Mark’s affidavit, [14]-[16], [21].
Mark’s evidence is that the agreement with his mother regarding his residence at the property continued after she moved into residential care. After she moved into residential care, he deposes that he continued to reside in the property attending to general maintenance, contributing towards payments of utilities, and undertaking some labour towards improving the property. He says that “my agreement with Mum did not require me to pay rent however I did pay for the utilities for the property and continue to do so”.[50] (It is common ground that Mark has not paid rent.)
[50]Ibid, [32].
Mark’s evidence is that State Trustees told him on several occasions that his mother did not want him to move out of the property.[51] This is consistent with the note from State Trustees exhibited to Gary’s first affidavit which states:
State Trustees met with Ms Conway and her daughter Karen at the Nursing home on 18/06/2018 and Ms Conway confirmed Mark had been residing in the home for several years and did not indicate that she wanted anything to change regarding this. I phoned Ms Conway on 24/09/2019 to specifically ask about her will and preference for her property and she advised she was happy for Mark to remain at the property. I have in preparation for this report called Ms Conway again to confirm this information, however Jo the manager at the nursing home has advised that Ms Conway’s dementia has advanced, and she no longer has the capacity to have such a discussion…[52]
[51]Ibid, [52].
[52]Exhibit ”GJC-1” to the first Gary affidavit, 9.
Mark says that in late 2020, State Trustees called him to say they had decided to sell the house and he heard nothing further from them after that.[53] As discussed above, State Trustees obtained approval from the Tribunal to sell the property on 30 October 2020.
[53]Mark’s affidavit, [52]-[54].
Mark’s evidence that Anton “lives at the property without my consent” is not consistent with a right to exclusive possession.
The evidence discussed above is consistent with the testator giving Mark a licence to reside at the property. That licence has ceased. The executors demanded that Mark move out of the property:
You have not responded to our letter of 8 June 2021 requesting you to vacate the Property by 30 June 2021 and you continue to reside at the Property without our clients’ consent. Our clients are also aware that another person is living in the Property, Anton Gurisibic, without our client’s consent.
We will not provide you with any further notice. You and Mr Gurisibic are required to vacate the Property by close of business on 13 July 2021.
If you have not vacated the Property by 13 July 2021, we are instructed to commence legal proceedings against you under order 53 of the Supreme Court (General Civil Procedure) Rules 2015 seeking recovery of the Property for the purpose of sale. [54]
[54]Exhibit ”GJC-1” to the first Gary affidavit, 16 (underline and bold in original).
Mark continues to reside in the property and has no licence to do so, nor is he a tenant. Accordingly, Order 53 is applicable to Mark’s circumstances in the property. The next question is whether the Court should exercise the power under Order 53.
Should orders for summary possession be made?
The executors’ key submissions follow.
(a) Mark currently resides at the property, rent free, and absent a licence from the executors. They understand that Anton also resides at the property, which would appear to be rent free and without the consent of either themselves or Mark.
(b) Possession of the property is sought pursuant to Order 53 of the Rules, in the circumstances where Mark’s refusal to vacate is prohibiting the timely and efficient administration of the estate. The executors have a duty to administer the estate. In order to distribute the estate, the property needs to be sold. The residuary beneficiaries are being kept out of their entitlements until the property is sold.
(c) The executors hold the relevant interest in the property. A Part IV claimant such as Mark does not have an interest in the testator’s estate but rather a personal right to litigate against the estate. Mark has no present enforceable proprietary right.
(d) Mark seeks an interest in the whole of the property by way of further provision pursuant to Part IV of the Administration and Probate Act 1958. 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.
(e) The executors recognise Mark is in difficult financial circumstances. The pressing concern is immediate accommodation. There is an appetite to advance provision to Mark insofar as it can lessen that burden. The executors propose the orders be subject to a 30 day stay.
Mark’s key submissions follow.
(a) The nature of the issues here, and his personal circumstances, are such that the orders for possession are more appropriately considered at trial, rather than determined here.[55]
[55]See: Story v Semmens [2011] 8 ASTLR 375; Keating v Jensen [2014] VSC 433; Bail v Scott-Mackenzie [2016] VSC 563; Re Winter-Cooke [2020] VSC 588.
(b) The nature of Mark’s claim in the Part IV proceeding is a statutory right. It gives Mark a floating interest over the estate assets, including the property. It is not fixed on assets until determination. In the meantime, it is a contingent statutory claim. The issue of whether an interest in an estate is a contingent statutory claim has never been conclusively determined. The question of Mark’s interest is one that should be reserved for trial. After judgment in the Part IV proceeding, the orders take effect as a codicil in operation from the date of the testator’s death.[56] To make orders for possession of the property deprives the Court of the opportunity to make orders [that gift him the property]. In the Part IV proceeding, and pursuant to ss 90A and 97 of the Administration and Probate Act 1958, Mark seeks an absolute interest in the testator’s estate. Making the orders for possession will deprive him of the remedy he seeks in the Part IV proceeding.
[56]Administration and Probate Act 1958 (Vic) s 97(4)(a).
(c) Mark has reasonable prospects of success in the Part IV proceeding. Mark’s financial situation is parlous. There is no evidence of any competing claims. He has a prospect of obtaining an interest in the whole of the property.
(d) The executors have their own interest in the estate. [They are both beneficiaries of the estate.] This proceeding is partisan. Any summary possession orders would be unjust in circumstances where there is a family dispute. The executors will be in a better negotiating position than Mark once he is out of the property.
(e) The expenses of the estate are not quantified.
(f) This proceeding is prematurely brought. It should be dismissed or stayed until determination of the Part IV proceeding.
Turning now to In the matter of the Will of Dorothea Agnes Baird,[57] upon which the executors rely. Mark says it is not applicable.
[57][2019] VSC 59 (‘Baird’).
In Baird, Keogh J allowed an application to remove caveats and made orders for summary possession pursuant to Order 53. I reject Mark’s submission that Baird is distinguishable. The circumstances in Baird have similarities with those here. The Order 53 orders in Baird were sought by Peter, an executor and the son of the deceased. The subject property (the ‘Rhyll property’) was occupied by his brother, Michael. The Rhyll property was the main asset of the estate. Other assets of the estate included a one-third interest in another property (the ‘Wonthaggi property’). There had been partial distribution of the estate. Michael had given notice he intended to make a Part IV claim. Michael caused caveats to be lodged over the Rhyll and Wonthaggi properties. He submitted that it was arguable he had an equitable interest in the Rhyll property as a residuary beneficiary which entitled him to remain in possession and maintain the caveats. Keogh J rejected that submission. I gratefully adopt his Honour’s reasoning:
… 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.[58]
[58]Ibid, [21]-[22] (citations omitted).
Keogh J held that possession of the Rhyll property by Michael was delaying the sale of the property and administration of the estate. He provided Michael with 60 days to vacate the property.[59]
[59]Ibid, [25].
Mark referred to the authorities cited by Keogh J and, in effect, contended that they were wrongly cited. It is unnecessary to recite the various contentions regarding those authorities given that I am both bound to follow Baird and, at any rate, gratefully adopt Keogh J’s reasoning.
As a matter of completeness, I will however address a number of authorities relied upon by the parties.
In Kempson v Davison,[60] McMillan J made orders to allow for the sale of property in a deceased estate with vacant possession. The application was made by the independent administrator. The estate’s most substantial remaining asset was a property in Glen Iris. The defendant, an adult child of the testator, occupied the property. He had made a Part IV claim seeking relief in the nature of a proprietary interest in the Glen Iris property, and did not want it sold until determination of the Part IV proceeding. The defendant contended if the property was sold then he would not be able to seek a proprietary interest in it or a right to purchase it. Her Honour stated:
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.[61]
[60][2016] VSC 366 (‘Kempson’).
[61]Ibid, [13].
Her Honour also noted correspondence from the solicitor for the administrator that they could not effectively deal with the Part IV claim until the property was sold so that the size of the estate was established, her Honour stated: “This is undeniably correct”.[62] Her Honour made orders that the defendant vacate the property within 28 days, finding that:
... 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.[63]
[62]Ibid, [14].
[63]Ibid, [17].
In Parker v Mielicki,[64] orders were sought by the administrator in circumstances where the testator’s son, the defendant, remained in the subject property, namely the family home. The defendant commenced a Part IV proceeding. The administrator moved to further the estate by selling the property. The defendant sought an adjournment of the Order 53 application until determination of the Part IV proceeding. At first instance, those orders were made. The administrator successfully appealed those orders. On appeal, Teague J made orders for possession pursuant to Order 53. Teague J accepted, with reservations, that the defendant may have prospects of success in the Part IV proceeding. However, his Honour observed that the position of the defendant relative to his widowed mother, who had left the family home and gone into care, seemed extremely weak. Teague J held that the needs of the defendant’s mother were likely to be better attended to if the property was sold, with the proceeds being potentially held by her.[65]
[64][2003] VSC 263 (‘Parker’).
[65]Ibid, [9].
Turning now to authorities that address the question of standing.
In Wood and Anor v McLean and Anor,[66] Sifris J allowed summary judgment in favour of the executor. The circumstances were that two of the testator’s children (the ‘plaintiffs’) commenced Part IV proceedings seeking provision from the deceased estate. Prior to the testator’s death, he had transferred real property to another child. The plaintiffs commenced a proceeding alleging that the transfer should be set aside on equitable grounds. The executor said that the plaintiffs lacked standing. Sifris J agreed.
In my opinion, the plaintiffs do not have a sufficient interest in the dispute so as to give them standing to pursue the claim. The fact that they would like the transfer to be set aside as it may assist them if and when they succeed in the Pt IV proceeding does not affect the position and does not create any present interest. Seeking to have some interest or benefit out of the estate (if successful in the future) does not give any present enforceable right at all. At present, they have nothing more than a naked statutory right to litigate. It is a personal statutory right and not a proprietary right. Although they are close to the deceased in a family sense, they are strangers in a legal sense.
Assuming the Pt IV case was heard and determined today against the plaintiffs, this case would be struck out. The sustainability of this case is contingent on the plaintiffs succeeding in the Pt IV case. Such contingency is not, in my opinion, sufficient to give the plaintiffs standing.[67]
[66](2010) 31 VR 12 (‘Wood v McLean’).
[67]Ibid, [40], [43] (citations omitted).
Subsequently, the Court of Appeal gave leave to appeal, although the appeal was discontinued. In the reasons granting leave to appeal, the Court of Appeal referred to the following issue submitted by the respondents as to whether they had standing, which was a “novel question”, namely, as to whether the plaintiffs’ statutory position under Part IV was not a relevant present interest for the purposes of standing.[68] Accordingly, the ‘novel question’ was in respect to the issue of standing.
[68]Ibid, 18.
In Mataska v Browne,[69] McMillan J considered, amongst other things, an application by the plaintiff to pass over the executrix and for a limited grant of letters of administration. The plaintiff was an adult child of the deceased. Her sibling was the defendant and executrix of the deceased estate. One issue determined by McMillan J was whether the plaintiff had standing. Her Honour held that the plaintiff did have standing and made a limited grant of representation. Her Honour analysed a number of authorities on standing, including Wood v McLean. Her Honour disagreed with the reasoning in Wood v McLean, although noted that the Part IV claim was not a present or actual existing interest in the estate. McMillan J held:
Although it is correct to say that, at the time of the application before me, the plaintiff does not have a present interest or an actual existing interest in the estate, the fact that her Part IV claim, which would entitle her ultimately to be a beneficiary of the estate as at the death of the deceased, could be said to have a reasonable prospect of success suggests that she has a prima facie interest in the estate of the deceased. In that sense, she has a sufficient interest in the administration of estate. In my opinion, the principle enunciated by Sifris J in Wood v McLean, that a contingent interest cannot constitute a sufficient interest, is too broadly stated. A contingent Part IV interest, without more, is insufficient to support standing. In certain cases, however, as in Hogarth v Johnson and Estate of Aaldert van der Berg, the reasonable prospect of a successful Part IV claim will suffice to give standing.
In my view, I consider that the authorities to which I have referred support the view that a ‘reasonable possibility of an interest ‘exists for the plaintiff and is sufficient to justify concluding that she has standing. It is moreover sensible that the determination of the composition of the estate should precede the question whether the plaintiff has received adequate compensation from it.[70]
[69][2013] VSC 62 (‘Mataska’).
[70]Ibid, [53]-[54] (citations omitted).
The question of standing considered in both Wood v McLean and Mataska is not in issue here. Mark referred to these authorities and says the Court has never conclusively decided that a claimant in a Part IV claim has a proprietary interest. Further, because this is a novel question, it is more appropriately determined at trial. That proposition is rejected. As held in Baird, the Part IV claim does not give a claimant a proprietary interest in the subject property. This is consistent with Kempson and Mataska cited above.
Orders should be made for summary possession due to the following.
(a) Mark occupied the property as a licensee and that licence has been revoked, however, he remains in occupation.
(b) Mark does not have a proprietary interest in the property.
(c) The property is the only substantial asset of the testator’s estate and must be sold to duly administer the estate.
(d) There is no prospect of Mark obtaining a 100% interest in the property as an outcome of the Part IV proceeding given that the estate has, and will, incur legal costs that will need to be paid out of the estate both in bringing this application and defending the Part IV proceeding. Whilst it would have been helpful to have those costs to date in evidence, it is not fatal. It is evident that legal costs will be incurred by the estate given that legal practitioners are engaged in both proceedings.
(e) The orders for summary possession do not preclude Mark from pursuing the Part IV proceeding. The question in that proceeding will be whether adequate provision has been made for him.
(f) I accept Mark’s parlous financial situation. I will allow a stay of 30 days in order for him to secure alternative accommodation.
(g) Anton has not defended this application despite being on notice of it. He has no legal right to occupy the property. The orders for summary possession will be directed against him too.
Conclusion
I will make the orders for summary possession, with a stay of 30 days.
I will give the parties an opportunity to confer as to the form of orders, and the question of costs.
SCHEDULE OF PARTIES
| S ECI 2021 03831 | |
| BETWEEN: | |
| KAREN PATRICIA LANCASTER (IN HER CAPACITY AS EXECUTOR OF THE ESTATE OF SHIRLEY IRENE CONWAY) | First Plaintiff |
| GARY JOSEPH CONWAY (IN HIS CAPACITY AS EXECUTOR OF THE ESTATE OF SHIRLEY IRENE CONWAY) | Second Plaintiff |
| - v - | |
| MARK ANDREW CONWAY | First Defendant |
| ANTON GURISIBIC | Second Defendant |
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