Mole v Mole - [2021] VSC 752

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TRUSTS EQUITY AND PROBATE LIST

S ECI 2021 04141

IN THE MATTER of the Will and Estate of COLIN GRAEME MOLE, deceased

COLIN CHARLES MOLE	First Plaintiff
ANDREW JAMES MOLE	Second Plaintiff
NATHAN CHARLES MOLE	Third Plaintiff
v
STEVEN JAMES MOLE (in his capacity as Executor and Trustee of the Estate of COLIN GRAEME MOLE, deceased)	Defendant

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JUDGE:	MOORE J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 November 2021
DATE OF JUDGMENT:	16 November 2021
CASE MAY BE CITED AS:	Mole v Mole
MEDIUM NEUTRAL CITATION:	[2021] VSC 752

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INTERLOCUTORY INJUNCTION – Application for judicial advice – Sale of land to beneficiary under will – Capital Gains Tax implications – Power of appropriation – Equitable setoff – Interlocutory injunctive relief refused – Supreme Court (General Civil Procedure) Rules2015, Order 54.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr T B D Gorton	Davies Watson Pty Ltd
For the Defendant	Mr J Smith	Earl & Associates

HIS HONOUR:

On 11 November 2021, I dismissed an application by the plaintiffs for an interlocutory injunction restraining the defendant from treating as being terminated or rescinded certain contracts of sale of land. These are my reasons for judgment for dismissing the plaintiffs’ application for interlocutory relief.

Factual context

The factual background to the application was largely uncontroversial.

The first plaintiff (Colin)[1] and the defendant (Steven) are sons of the late Colin Mole who died on 15 November 2019. Colin has two children, Andrew and Nathan, who are his business partners and co-plaintiffs. Steven has two children, David and Jayde.
[1]For convenience and to avoid confusion, without any disrespect to the parties, I will refer to the parties by their first names.

The deceased’s last will was made on 5 January 2018 (the will) and appointed Steven as executor and gifted his residuary estate to Steven, David, Jayde, Andrew and Nathan. Unlike the terms of the deceased’s penultimate will, Colin was excluded as a beneficiary under the will. The will records that the deceased made no provision for Colin ‘having regard to the lack of care and feeling shown to me by my said son and having regard to his spendthrift ways’.[2]
[2]Clause 8 of the will.

Steven obtained a grant of probate on 15 June 2020. The inventory of assets and liabilities prepared by Steven in support of the grant recorded total gross assets of $936,043.66. The principal assets of the estate included two parcels of land which collectively comprised the deceased’s farm (the farm properties), as well as a property in the town of Ouyen.

Colin commenced a claim for further provision from the estate pursuant to Part IV of the Administration and Probate Act on 3 September 2020 (the Part IV proceeding). He also lodged caveats on the farm properties asserting that the deceased held them on a constructive trust for his benefit (the caveats).

Colin’s claims…

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 Mole v Mole

Details

AGLC: Mole v Mole [2021] VSC 752
Case: [2021] VSC 752
Decision Date: 16 November 2021

CaseChat Overview and Summary

The case of Mole v Mole involved the applicant, who sought judicial advice regarding the sale of land held in trust, in light of impending capital gains tax implications. The respondent, who was a beneficiary under the will of the deceased, sought to have the land sold and the proceeds distributed. The dispute arose within the Supreme Court of Victoria, with the applicant arguing for an interlocutory injunction to prevent the sale until the capital gains tax implications were fully understood. The respondent, on the other hand, maintained that the sale should proceed as per the terms of the will, and that any tax implications were matters for the beneficiaries to resolve.

The primary legal issue before the court was whether an interlocutory injunction should be granted to prevent the sale of the land until the capital gains tax implications were clarified. The court also had to consider the power of appropriation, equitable setoff, and the relevant provisions under the Supreme Court (General Civil Procedure) Rules 2015, Order 54. The applicant argued that the sale would result in significant capital gains tax liabilities, which could be mitigated by a temporary injunction. The respondent contended that the applicant's concerns were speculative and that the sale should proceed as per the will's terms, with any tax consequences to be borne by the beneficiaries.

In delivering its judgment, the court found that the applicant had not demonstrated a sufficiently compelling case for an interlocutory injunction. The court emphasised that interlocutory injunctions are not granted lightly and require a clear demonstration that the applicant will suffer irreparable harm if relief is not granted. The court was not convinced that the applicant's concerns about capital gains tax implications met this threshold, given the speculative nature of the claims. Additionally, the court noted that the power of appropriation and equitable setoff were not relevant to the application for an interlocutory injunction in this context. The court concluded that the application for interlocutory injunctive relief should be refused.

As a result of the court's decision, the applicant was not granted the interlocutory injunction sought, and the sale of the land proceeded as per the terms of the will. The court's decision highlighted the high threshold for obtaining interlocutory injunctive relief and the importance of demonstrating clear and irreparable harm. The case serves as a reminder to practitioners that applications for interlocutory relief must be carefully considered and supported by strong evidence to be successful.

Orders