Maher v Kuperholz - [2022] VSC 224

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST

S ECI 2019 04596

BETWEEN:

DAVID JOHN MAHER and ANTHONY CHARLES MAHER	Plaintiffs
- and -
NATHAN KUPERHOLZ (who is sued as the Administrator of the Will annexed of THOMAS PATRICK MAHER, deceased) and others (according to the schedule attached)	Defendants

AND BETWEEN

NATHAN KUPERHOLZ (who is sued as the Administrator of the will annexed of THOMAS PATRICK MAHER, deceased) and others (according to the schedule attached)	Plaintiff by First Counterclaim
- and -
DAVID JOHN MAHER and others (according to the schedule attached)	Defendants by First Counterclaim

AND BETWEEN

CHRISTINE BURDEN (as Executrix of the Will and Trustee of the Estate of MAUREEN BROWN, deceased) and DAMIEN MAHER (as Executor of the Will and Trustee of the Estate of MAUREEN BROWN, deceased)	Plaintiffs by Second Counterclaim
- and -
DAVID JOHN MAHER and ANTHONY CHARLES MAHER	Defendants by Second Counterclaim

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JUDGE:	MOORE J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 October 2021, 22, 23 & 24 November 2021 and written submissions filed 3 December 2021, 13 December 2021, 17 December 2021 and 20 December 2021
DATE OF JUDGMENT:	9 May 2022
CASE MAY BE CITED AS:	Maher v Kuperholz
MEDIUM NEUTRAL CITATION:	[2022] VSC 224

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WILLS AND PROBATE – Plaintiffs are farmers occupying land belonging to the respective estates of their deceased parents – Claim against administrator and executors for debts and a declaration that estate holds lands on trust for plaintiffs – Counterclaim for damages of mesne profits for unlawful occupation of estate land – Plaintiffs’ license to occupy estate lands revoked – Plaintiffs unlawfully occupying land belonging to the estates – Lack of evidence to ground a proprietary estoppel claim by plaintiffs – Mesne profits awarded to administrator and executors – Vacant possession of estate lands granted – Kuru v New South Wales (2008) 236 CLR 1, Harrison v Harrison [2011] VSC 459, Lollis v Loulatzis [2007] VSC 547, Sydney Local Health District v Macquarie International Health Clinic Pty Ltd (2020) 105 NSWLR 325, applied.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs/Defendants by Counterclaim/Defendants by Second Counterclaim	Self-represented
For the First Defendant/First Plaintiff by First Counterclaim	KCL Law
For the Second and Third Defendants/First and Second Plaintiff by Second Counterclaim	Mr A Verspaandonk	Kathy Wilson Legal
For the Seventh to Thirteenth Defendants/Second to Seventh Plaintiffs by First Counterclaim	Mr R Wells with Ms R Grayson Morison	McNab & Starke

TABLE OF CONTENTS

Background......................................................................................................................................... 1

Wills...................................................................................................................................................... 3

Procedural history.............................................................................................................................. 4

Are David and Anthony in unlawful occupation of land?........................................................ 6

TP Maher estate land.................................................................................................................... 7
Thompsons................................................................................................................................... 15

Mesne profits..................................................................................................................................... 22

Legal principles........................................................................................................................... 23
Findings........................................................................................................................................ 25

Disposition........................................................................................................................................ 26

HIS HONOUR:

David and Anthony Maher are brothers who have lived on and farmed land near Barnong in Central Victoria all their lives. They are now 75 and 72 years old respectively. Significant portions of this land were acquired over many years by their father, Thomas…

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 Maher v Kuperholz

Details

AGLC: Maher v Kuperholz [2022] VSC 224
Case: [2022] VSC 224
Decision Date: 9 May 2022

CaseChat Overview and Summary

In the matter of Maher v Kuperholz, the plaintiffs, who are farmers, sought to establish that the estates of their deceased parents held certain lands on trust for them, and they requested a declaration to this effect as well as payment of outstanding debts. The defendants, the administrator and executors of the estates, filed a counterclaim for mesne profits, asserting that the plaintiffs were unlawfully occupying the estate lands. The Supreme Court of Victoria was tasked with resolving these disputes.

The primary legal issues before the court were whether the plaintiffs could establish a proprietary estoppel claim against the estates and if the plaintiffs' occupation of the estate lands was lawful. The court needed to determine whether the plaintiffs had a legitimate expectation that they would receive the estate lands and if they had acted to their detriment in reliance on that expectation. Additionally, the court had to assess the validity of the defendants' counterclaim for mesne profits.

The court found that the plaintiffs had failed to provide sufficient evidence to establish a proprietary estoppel claim. They were unable to demonstrate a clear and unequivocal assurance from their parents that they would receive the estate lands. As a result, the plaintiffs' claims were dismissed. In relation to the defendants' counterclaim, the court determined that the plaintiffs were indeed unlawfully occupying the estate lands since their license to do so had been revoked. Consequently, the court awarded mesne profits to the administrator and executors of the estates and ordered the plaintiffs to vacate the estate lands.

The final orders of the court included a declaration that the plaintiffs had no proprietary interest in the estate lands, dismissal of their claims, and an award of mesne profits to the defendants. The court also granted the defendants vacant possession of the estate lands.

Orders