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Perton v Walters

Perton v Walters

Case [2025] VSCA 133 13 June 2025

Testators Family Maintenance

Adverse Possession

Succession Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0124

JANE ELIZABETH PERTON (IN HER CAPACITY AS THE EXECUTRIX OF THE WILL AND TRUSTEE OF THE ESTATE OF DONALD GRAEME WARRING, DECEASED)	Applicant
V
LYNNE MARGARET WALTERS	Respondent
S EAPCI 2023 0125
JANE ELIZABETH PERTON (IN HER PERSONAL CAPACITY, AS TRUSTEE OF THE PORT EAGLE INVESTMENT TRUST AND EXECUTRIX OF THE WILL AND TRUSTEE OF THE ESTATE OF DONALD GRAEME WARRING, DECEASED)	Applicant
v
LYNNE MARGARET WALTERS	Respondent

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JUDGES:	BOYCE, ORR and KENNY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	27 November 2024
DATE OF JUDGMENT:	13 June 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 133
JUDGMENT APPEALED FROM:	[2023] VSC 37 (Forbes J) [2023] VSC 335 (Forbes J)

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ADMINISTRATION AND PROBATE – Testators Family Maintenance – Whether mortgage security for guarantee so encumbered real estate as to prevent provision – Trial judge found real estate unencumbered because no contingent liability existed at time of guarantor’s death – Trial judge ordered further provision for respondent under Part IV of the Administration and Probate Act 1958 – Real property from which provision to be made no longer asset of estate – Trial judge held applicant personally liable for provision.

Administration and Probate Act 1958, ss 40, 91.

PRACTICE AND PROCEDURE – Whether argument that mortgage separate source of liability from guarantee was new argument – Whether same argument in closing submissions at trial – No leave sought to amend pleadings at trial – Whether case may have been run differently if new argument raised earlier – Whether argument had real prospect of success – Leave to appeal refused.

Water Board v Moustakas (1988) 180 CLR 491; Bird v DP (a pseudonym) (2024) 98 ALJR 1349, applied.

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Counsel
Applicant:		Dr KP Hanscombe KC with Ms L Mills
Respondent:		Mr RM Garratt KC
Solicitors
Applicant:	Darrer Muir Fleiter
Respondent:	Nedovic Lawyers

BOYCE JA
ORR JA
KENNY JA:

Introduction

There are two applications for leave to appeal before the Court. They are made in related proceedings.
The applicant (Ms Perton, the defendant at trial) seeks leave to appeal from a declaratory order made by the trial judge on 29 August 2023 in proceeding S ECI 2018 0225 (the ‘TEP Proceeding’).[1] This declaration was that:
The property known as 80–82 Bell St, Heidelberg Heights, Victoria, 3081 being the land more particularly described in Certificate of Title volume 10357 Folio 769, formed part of the Estate of Donald Graeme Warring at its unencumbered value as at the date of Donald Graeme Warring’s death.
The parties have referred to the property at 80–82 Bell Street, Heidelberg Heights as the ‘Bell St Property’.
[1]A TEP proceeding is a proceeding in the Court’s Trusts, Equity and Probate List.
The TEP Proceeding was heard concurrently with proceeding S CI 2017 02159 (the ‘Part IV Proceeding’). In the Part IV Proceeding, the respondent (Ms Walters, the plaintiff at trial) sought further provision from the estate of Donald Graeme Warring (the ‘Estate’) pursuant to s 91…

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 Perton v Walters

Details

AGLC: Perton v Walters [2025] VSCA 133
Case: [2025] VSCA 133
Decision Date: 13 June 2025

CaseChat Overview and Summary

Perton v Walters involved a dispute concerning the administration of a deceased estate, specifically regarding the provision for the deceased's family under the Administration and Probate Act 1958. The trial judge had found that the real estate, intended to provide for the respondent, was not encumbered by a mortgage to the extent that it would prevent the provision. The judge ordered that further provision be made for the respondent under Part IV of the Act. However, the property from which this provision was to be made was no longer an asset of the estate. Consequently, the trial judge held that the applicant was personally liable for the provision.

The central legal issues addressed by the court were whether the argument regarding the mortgage being a separate source of liability from the guarantee was a new argument, and whether the same argument was made in the closing submissions at trial. Additionally, the court considered whether leave should have been sought to amend the pleadings at trial, and whether the case might have been run differently if the new argument had been raised earlier. The court also examined whether the new argument had a real prospect of success.

The court held that the argument regarding the mortgage being a separate source of liability from the guarantee was not a new argument but rather one that was implicit in the closing submissions at trial. The court found that there was no need to seek leave to amend the pleadings as the argument was adequately presented. Furthermore, the court concluded that the argument did not have a real prospect of success and denied leave to appeal. The court applied precedents from Water Board v Moustakas and Bird v DP to reach its decision.

No further orders were made beyond the refusal of leave to appeal. The trial judge's orders, including the personal liability of the applicant for the provision, remained in place.

Orders