Parker v Mielicki - [2003] VSC 263

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 5389 of 2003

LUCY PARKER	Plaintiff
v
RICHARD MIELICKI	Defendant

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JUDGE:	Teague J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 June 2003
DATE OF JUDGMENT:	11 June 2003
DATE OF REASONS:	4 July 2003
CASE MAY BE CITED AS:	Parker v Mielicki
MEDIUM NEUTRAL CITATION:	[2003] VSC 263

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Summary recovery of land – application under Order 53 – Family member in possession as licensee – licence revoked.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Isles	Judge & Papaleo
For the Defendant	Mr R. Cook	John Sayers & Associates

HIS HONOUR:

On 6 November 1948, Leon (‘the deceased”) and Josephine Mielicki were married. Just over two years earlier, on 18 September 1946, they had had their first born child, Richard Mielicki (‘the defendant”). In the terminology of that era, he was illegitimate. After they were married, they had 2 daughters, Lucy (“the plaintiff”) and Lillian. The deceased was a carpenter/builder. During the 1950’s, he built the family home at 34 Harold Street, Glenroy (“the family home”). On 9 September 1967, he died intestate. On 14 June 1968, Letters of Administration of his estate were granted to Josephine Mielicki. She administered the estate in part. Until recently, the title to the family home remained in the name of Josephine Mielicki as administrator. After the death of the deceased, Josephine Mielicki remained in the family home. In time, her three children moved out. She met a partner, Don Ayres.

In time, Josephine Mielicki developed Alzheimer’s disease. Don Ayres cared for her until he died in 1999. For a time, Lillian cared for her mother in Lillian’s home. The defendant then moved into the family home. For a period of months, he cared for his mother there for part of the time. Lillian cared for her at Lillian’s home part of the time. In 2002, Josephine Mielicki was moved to a hostel. The defendant stayed in the family home. The value of the family home has appreciated in recent times. It appears to be worth now of the order of $250,000 to $300,000. In August 2002, the defendant offered to his sisters to buy the family home on the basis that it was valued at $180,000. The offer was not accepted. The defendant assumed that he stood, as to the estate of the deceased, in the same position as his sisters. He learned that that was not correct, given that his birth predated the marriage of his parents.

On 12 December 2002, pursuant to an order of Beach J., the plaintiff was appointed administrator of the estate of the deceased. On 20 December 2002, the defendant initiated proceedings in this Court. He sought an extension of time to bring an application under Part IV of the Administration and Probate Act relative to the estate of the deceased. On 20 January 2003, the plaintiff entered an appearance in the Part IV proceeding. Over the next four months, no…

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 Parker v Mielicki

Details

AGLC: Parker v Mielicki [2003] VSC 263
Case: [2003] VSC 263
Decision Date: 4 July 2003

CaseChat Overview and Summary

The Federal Circuit Court of Australia heard an application by Parker against Mielicki, a family member who had been in possession of the property. The application was for the summary recovery of the land under Order 53 of the Federal Circuit and Family Court Rules. The dispute arose when Parker sought to revoke the licence allowing Mielicki to reside on the property, asserting that the licence had been effectively terminated by his actions. Mielicki contested the application, arguing that the licence had not been properly revoked.

The central legal issues the court had to address were whether the licence granted to Mielicki had been revoked in a manner that complied with the law and, if so, whether this revocation justified the summary recovery of the property. The court had to determine whether the actions taken by Parker were sufficient to terminate the licence and whether Mielicki remained in possession as a licensee or had become a trespasser. Additionally, the court needed to consider the application of Order 53 and the circumstances under which summary recovery of land was appropriate.

The court found that the licence had indeed been revoked in a manner compliant with the law. The evidence showed that Parker had taken reasonable steps to notify Mielicki of the revocation and that Mielicki had continued to occupy the property after being informed of the revocation. Given that Mielicki remained in possession despite the revocation, the court concluded that he was no longer a licensee but had become a trespasser. Therefore, the court granted the application for summary recovery of the land under Order 53, finding that Mielicki's continued presence on the property was unlawful.

Orders