Lancaster v Conway - [2022] VSC 117

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

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…

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 Lancaster v Conway

Details

AGLC: Lancaster v Conway [2022] VSC 117
Case: [2022] VSC 117
Decision Date: 11 March 2022

CaseChat Overview and Summary

In the matter of Lancaster v Conway, the plaintiff, Lancaster, sought an order for summary possession of property from the defendant, Conway, under the Supreme Court (General Civil Procedure) Rules 2015. The core dispute centred on whether Conway was a licensee or a tenant at will, thereby determining his rights to remain on the property. The case was heard in the Supreme Court of Victoria.

The court had to determine the legal status of Conway's occupancy, which was pivotal in assessing whether he had a proprietary interest in the property. The legal issue involved interpreting the nature of Conway's claim under Part IV of the Administration and Probate Act 1948, which the court found did not create a proprietary interest. This interpretation hinged on several precedents, including Framlingham Aboriginal Trust v McGuiness, Chan v Chan, In the matter of the Will of Dorothea Agnes Baird, Alderuccio v Alderuccio, Kempson v Davison, Parker v Mielicki, and Wood and Anor v Mclean and Anor. The court examined these cases to understand the distinction between a licensee and a tenant at will.

The court concluded that Conway's claim did not confer a proprietary interest in the property, classifying him as a licensee rather than a tenant at will. Consequently, the court allowed the application for summary possession. This decision was grounded in the understanding that a claim under Part IV of the Administration and Probate Act 1948 does not equate to a proprietary interest, as established by the referenced cases. Given this classification, Conway did not have the right to resist the application for possession.

The final orders of the court mandated that Conway vacate the property and return it to the plaintiff, Lancaster, within the specified time frame. The court's decision underscored the importance of accurately determining the nature of occupancy rights in property disputes, particularly in cases involving claims under the Administration and Probate Act 1948.

Orders