Re Donat; Robert Donat v Philippe Donat

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
IN ITS PROBATE JURISDICTION

TRUSTS, EQUITY AND PROBATE LIST

S PRB 2023 33513

IN THE MATTER OF the estate of Davena Janice Donat, deceased

ROBERT JEAN DONAT	Plaintiff
v
PHILIPPE DONAT	First Defendant
PATRICK LYTTLETON	Second Defendant

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JUDGE:	Gray J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 June 2025
DATE OF RULING:	20 June 2025 (oral ex tempore); 27 June 2025 (revised) (First revision 1 July 2025)
CASE MAY BE CITED AS:	Re Donat; Robert Donat v Philippe Donat
MEDIUM NEUTRAL CITATION:	[2025] VSC 383 (First revision 1 July 2025)

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EQUITY – Judicial advice – Supreme Court (General Civil Procedure) Rules 2015 r 54.02 – Advice sought as to whether limited administrator is justified in compromising and paying certain debts from the deceased’s estate – Advice sought as to whether limited administrator is justified in commencing proceedings seeking payment of debts – Uncontroversial that advice should be provided in relation to certain debts – Claims made against estate for certain water debts rest on contractual construction – Claims made against estate for certain council debts are strongly arguable – Advice provided.

EQUITY – Judicial advice – Supreme Court (General Civil Procedure) Rules 2015 r 54.02 – Advice sought as to whether limited administrator is justified in taking steps to terminate licence and seek delivery up of possession of trust property – Advice provided.

PRACTICE AND PROCEDURE – Recovery of possession under Order 53 Supreme Court (General Civil Procedure) Rules 2015 – Not appropriate to finally determine Order 53 application at same time as giving judicial advice – Appropriate to schedule further steps leading to hearing of Order 53 application in the near future without need for summons or separate proceeding – Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66, 94 [74] – Civil Procedure Act 2010 ss 7–8.

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APPEARANCES:	Counsel	Solicitors
For Mr Robert Donat	Ms AS Bartfeld	Moores
For Mr Philippe Donat	Mr SD Ower KC	Moreheads Lawyers
For Mr Patrick Lyttleton	Mr N Baum	Suzanne Lyttleton Lawyers

HIS HONOUR:

Context

This proceeding was commenced as an application by Robert Jean Donat (Robert) for letters of administration pedente lite to be granted to Patrick Lyttleton (Mr Lyttleton) in respect of the estate of Davena Janice Donat (the deceased or Davena), who was the mother of Robert and Philippe Donat (Philippe).

The proceeding relates to proceeding S PRB 2022 07270, commenced by Robert’s originating motion filed 20 April 2022, in which Robert applies for a grant of probate of the deceased’s will dated 10 May 2013 (the probate proceeding). In the probate proceeding, Philippe is contesting the grant of probate to Robert.

This proceeding first came before me in December 2023. It was clear from the affidavit material at the time that the brothers were in dispute about Philippe’s occupation of an estate property at 118 Coolart Road Tuerong, described in Volume 08679 Folio 117 and Volume 08319 Folio 917 of the Register (the Tuerong property).

Robert’s application to appoint an administrator pendente lite was listed before me on 12 December 2023. Philippe appeared, unrepresented, and sought an adjournment of the 12 December 2023. He said he wished to obtain or reobtain legal representation. At the time it seemed to me that there was a prospect that the probate proceeding might be determined reasonably soon. Also, Philippe was not represented. In those circumstances, I decided to appoint Mr Lyttleton but not to empower him to take possession of the Tuerong property. I made statements on transcript at the hearing that I was not intending to make any orders that day that would adversely affect Phillipe or change the status quo concerning the Tuerong property.

On 12 December 2023, I made orders in this proceeding granting letters of administration pendente lite (that is, pending the outcome of the probate proceeding) to Mr Lyttleton, limited for the purposes relevantly of recovering, calling in and preserving the estate’s assets. With the benefit of hindsight, the comments I made during the hearing about not changing the status quo with respect to Philippe’s occupation of the Tuerong property were in tension with my order conferring on Mr Lyttleton the powers of ‘recovering’, and ‘calling in’, and perhaps even the power of ‘preserving’ the estate’s assets.

The matter next came before me on 18 November 2024. The affidavits of the brothers relied upon on that day,[1] show that a significant dispute had erupted about the operation of the orders I made on 12 December 2023. The key issue in dispute between the brothers remained Philippe’s continued occupation of the Tuerong property. They disputed whether Mr Lyttleton was empowered to take possession of the Tuerong property and sell it on behalf of the estate.

At the hearing on 18 November 2024, I made an order in the probate proceeding by consent, vacating a particular order of Associate Justice Efthim that had been made (also by consent) in July of that year suspending Mr Lyttleton from acting in his administration of the estate for a time. After I made it clear that I was going to vacate that order, at the hearing Mr Lyttleton informed me that he intended to apply to the Court pursuant to Order 54 of the Supreme Court (General Civil Procedure) Rules 2015 (the Rules) on questions including the occupation of the Tuerong property.

I indicated that any such application could be made by summons in this proceeding, dispensing with any requirement under the Rules for either a further proceeding to be commenced or any other formality.

Philippe was represented at the hearing. I told his counsel that Philippe would also be permitted to file and serve a summons in this proceeding if he was to make any application in relation to his occupation of the Tuerong property. I made orders accordingly.

In making those orders, I intended to adopt a case management process seeking to give effect to the overarching purpose of civil litigation in s 7 of the Civil Procedure Act 2010 as required by s 8 of that Act. In particular, I sought to avoid a multiplicity of separate proceedings, and to consolidate in this proceeding the issues concerning the management of the estate and the occupation of the Tuerong property, using this proceeding as a vehicle for all the issues.

In December 2024, Mr Lyttleton and Philippe Donat each filed a summons in this proceeding. Mr Lyttleton’s summons sought advice or directions under Order 54 of the Rules, and also included (in paragraph 5) an application for recovery of possession of the Tuerong property by way of the summary procedure in Order 53 of the Rules. The details appear in the Consideration section later in these reasons.

Philippe’s summons merely sought leave to be heard on the question of his occupation of the Tuerong property. I had previously granted him such leave. That Philippe’s leave would continue, or that he would readily obtain such leave again if he sought it, was not in genuine dispute. Philippe’s summons was otiose, or very nearly so. Significantly, he did not include any application for any substantive order in relation to his occupation of the Tuerong property. Also, he does not appear to have commenced a separate proceeding in any court of competent jurisdiction claiming a right of occupation either.

At the outset of the hearing on 18 June 2025 I granted Philippe leave to be heard, and for good measure I later allowed Philippe’s summons. That order was not opposed.

I also made the joinder orders in paragraph 1 of Mr Lyttleton’s summons, which were likewise unopposed.

Paragraphs 2–5 of Mr Lyttleton’s summons filed 3 December 2024 remain for determination.

Mr Lyttleton’s summons [2]–[5]

Mr Lyttleton’s summons [2]–[5] seeks:

(a) judicial advice as to whether Mr Lyttleton is justified in compromising and paying certain debts from the deceased’s personal estate;

(b) judicial advice as to whether Mr Lyttleton is justified in commencing certain proceedings against Philippe Donat;

(c) judicial advice as to whether Mr Lyttleton is justified in taking steps to terminate Philippe Donat’s licence to undertake cattle farming on the Tuerong property, and as to whether Mr Lyttleton is justified in seeking that Philippe Donat deliver up possession of the Tuerong property; and

(d) ‘if so’, an order for possession of that property pursuant to Order 53 of the Rules.

The following affidavits were received into evidence without qualification in relation to the applications for judicial advice, but on the basis that some of them were subject to objection by Philippe Donat in relation to the application for an order of possession of the Tuerong property pursuant to Order 53:

(a) Affidavit of Philippe Donat dated 14 November 2024;

(b) Affidavit of Philippe Donat dated 14 March 2025;

(c) Affidavit of Philippe Donat dated 14 May 2025;

(d) Affidavit of Robert Donat dated 15 November 2024;

(e) Affidavit of Robert Donat dated 21 March 2025;

(f) Affidavit of Robert Donat dated 4 April 2025;

(g) Affidavit of Mr Lyttleton dated 14 February 2025 (excluding [102]-[103] and all exhibit pages after page 532);

(h) Affidavit of Mr Lyttleton dated 3 June 2025;

(i) Affidavit of James Dimond dated 24 October 2024.

For reasons that will become obvious, I have deferred ruling on Philippe’s objection to the receipt of the affidavits on the Order 53 application and intend to rule on that objection in the near future.

Relevant facts

The deceased died on 2 November 2021. She was survived by her two sons, Philippe and Robert. They are in dispute about her estate.

She left a will dated 10 May 2013 (2013 will) which appointed Robert as executor and trustee, and gave the balance of the estate to Robert. At the date of her death, her estate was valued at around $4.7 million, consisting of:

(a) the Tuerong property, valued at around $4 million;

(b) around $806,000 in a deposit, bank account savings, and shares;

(c) liabilities owing to:

(i) Mornington Peninsula Shire Council for rates in the amount of $5,237.30; and

(ii) Murray Irrigation Limited for water rates in the amount of $54,288.86.

Before the 2013 will, the deceased made a will dated 14 May 2009 (2009 will).

The deceased and Philippe were in a purported partnership running a cattle farming, hay and crops business from about 2006 until the end of June 2013. Robert deposed that the business was operated from 2297 Pretty Pine Road, Morago, New South Wales (the Deniliquin property/ sometimes called the Morago property),[2] owned by the partnership but registered only in the deceased’s name. Philippe deposed that the partnership with the deceased ended by 30 June 2013, and that to the best of his knowledge, the 2013 partnership tax return was the final partnership tax return.

In November 2015, Philippe placed caveats over the Tuerong property on the basis of his purported partnership with the deceased and his equitable interest from his work in farming the Tuerong property. These caveats were withdrawn on 5 April 2022. Philippe currently uses the Tuerong property for farming. In his most recent submissions and affidavit he says the Tuerong property is ‘partnership property’. I will return to this later.

In 2016, due to Davena’s declining health, Robert was appointed as Davena’s administrator.

On or about 16 March 2017, a deed of agreement was signed between Philippe and Robert on behalf of Davena, in his capacity as her administrator (2017 deed). The 2017 deed provided, inter alia, that:

(a) the Deniliquin property be transferred from Davena to Philippe and that Philippe shall pay the following debts:

(iii) all loans secured by mortgage against the Deniliquin property;

(iv) the amount of $11,791.07 to Davena to be applied to a Westpac Mastercard; and

(v) the amount of $12,323 to Davena to be applied to a Westpac Visa Card.

(clause 2)

(b) Philippe shall be liable for all outgoings associated with the Deniliquin property, including any arrears of such outgoings, and shall indemnify Davena in relation to the same. (clause 3)

(c) Davena grants a licence to Philippe to continue to undertake cattle farming on the Tuerong property for 10 years from the date of the deed, which is to be reviewed every two years at the option of Davena’s administrator, Robert, or until the date which is six months after Davena’s death, whichever is the earlier date, provided that:

(i) ‘He shall use the Tuerong property only for cattle grazing, hay production and storage, and will not dump rubbish on the Tuerong property;’ (clause 6(a))

(ii) ‘He shall maintain that part of the property which lies outside of Davena’s former home and its immediate surrounds;’ (clause 6(b))

(iii) ‘He shall pay all rates, insurances and outgoings related to the Tuerong property, including any arrears’ (clause 6(c)).

(d) Save for the enforcement of the deed, Davena releases Philippe from any debts (whether relating to the partnership or otherwise), claims or suits which Davena may otherwise have against Philippe, and vice versa (clauses 8 and 9).

The 2017 deed was signed by Robert on 16 March 2017 and by Philippe at an unspecified date.

In March 2025, Philippe deposed that he signed the 2017 deed under the mistaken belief that he would receive at least an equal share of the estate and that Robert knew of his mistaken belief and his reliance upon it. He says this gives rise to an estoppel claim. I will return to this later.

An instrument of transfer of the titles of the Deniliquin property from Davena to Philippe was lodged on 20 March 2018, and the titles were registered to Philippe on 28 May 2018.

There were two sets of entitlements associated with the Deniliquin property that must be considered: a Murray Irrigation Limited water entitlements contract, and cattle grazing rights in the nearby Morago state forest granted by Edward River Council.

The Murray Irrigation Limited water entitlements issue is now a very significant one, with that company claiming more than $130,000 against the estate. The Edward River Council issue is less significant, and involves a debt of between $4,000 and $5,000.

In evidence before me, there are what appear to be duplicate or reprinted tax invoices issued by Murray Irrigation Limited on a monthly basis from April 2017 (due 1 June 2017) to April 2024 (due 31 May 2024). They are all addressed to the estate of D J Donat, even those predating her death, which makes me think they are duplicates or reprints.

In any event, I have given them weight as reflecting information derived from the records of Murray Irrigation Limited about its billings over that period. They show that every quarter over that period the account in Davena’s name was debited for a landholding access fee, an extra large irrigation outlet fee, an irrigation S&D outlet fee, some minor government charges and administration fees, and two substantial fees, one entitled ‘delivery entitlement fee’, involving ‘691’ units of some kind, and a ‘delivery entitlement fee – AMRR’, also for ‘691’ units. These two items together added an amount each quarter which ranged from about $1,800 to about $2,600 over the period. Each month, the outstanding amount got larger and interest was incurred. Interest for April 2017 was minimal: about $17, suggesting that very little was owing on the account at that time. However, by the end of April 2024, nearly $700 in interest was accruing every month.

Following Davena’s death in November 2021, Robert Donat commenced the probate proceeding, applying for a grant of probate of the 2013 will.

Philippe filed a caveat in the probate proceeding and filed grounds of objection (that he later amended) alleging that the deceased lacked testamentary capacity, that she did not know and approve the contents of the 2013 will, and that it was signed in suspicious circumstances. In his grounds of objection, it is contended that the 2009 will is the deceased’s last valid will.

The 2009 will relevantly:

(a) appointed Philippe and Robert as executors (cl 2);

(b) made gifts to Philippe, Robert and her grandchildren (cl 3(i), (iii)–(vi));

(c) left the Deniliquin Property) to Philippe (cl 3(ii));

(d) directed, in respect of the Tuerong Property, that (cl 4):

(iv) it is only to be sold if either Philippe or Robert “insists”;

(v) either of her sons will “have the ability to purchase any of the properties from my estate at a price to be agreed between them or failing agreement by a valuer to be agreed”; and

(vi) the remaining farm equipment and tools are to be retained and, following the sale of the properties, be divided between Philippe and Robert;

(e) gave, devised and bequeathed the residue to Philippe and Robert, to be divided equally (cl 5).

On 30 May 2025, Robert informed Mr Lyttleton that Philippe’s ex-partner, Ms Hutchinson, had sold the Deniliquin property on that day, and that settlement was in 90 days.

In the probate proceeding, after an issue arose about the solicitor acting for Robert, it seems that an order was made by consent on 31 May 2024 by Efthim AsJ for any work or actions to be taken by Mr Lyttleton to be put on hold until after the scheduled hearing date of Philippe’s application to compel Robert’s solicitors to cease to act. On 19 July 2024, Efthim AsJ made orders by consent re-listing this application at a later date and extending the suspension of Mr Lyttleton’s work and actions to that date. As already mentioned, on 18 November 2024, I made orders by consent in the probate proceeding vacating Efthim AsJ’s 19 July 2024 orders.

As at 3 June 2025, the estate held $647,063.08 in liquid or readily realisable funds and shares.

At the hearing before me on 18 June 2025, I was informed that the next fixture in the probate proceeding is due to take place on 3 July 2025. Mr Ower KC informed the Court that Philippe will at that fixture seek leave to further amend his grounds of objection.

It is not clear how long the probate proceeding will take to reach a conclusion. On one view it is still at a relatively early stage, given that Philippe has not yet finalised the grounds of objection he wishes to pursue. On the other hand, it is now about three years since he first lodged his caveat and then his initial grounds of objection, and I understand that he has already amended them once. If his foreshadowed application for leave to further amend his grounds is not granted and a prima facie hearing occurs, and if Philippe fails to establish a prima facie case and is not joined as a party, the probate proceeding could come to a quick end and Robert could be granted probate of the 2013 will.

But no assumptions about a speedy conclusion of the probate proceeding can be made. Given its history, it would not be prudent to assume that the probate proceeding will come to a conclusion any time soon. That places greater significance on regularising the possession of the Tuerong property, which is by far the estate’s most valuable asset.

Consideration

I will first address the question of whether to grant judicial advice and/or directions pursuant to Order 54 of the Rules on the topics raised by Mr Lyttleton, and in doing so whether to grant any of the declarations associated with the topics for advice that are sought by Robert.

I will explain my intentions with regard to the hearing and determination of the application for recovery of possession of the Tuerong property under the summary procedure in Order 53 of the Rules at the end of these reasons.

Judicial advice/directions (and related declarations sought by Robert)

In this section, I explain my conclusions in response to the application for:

(a) advice/direction as to whether Mr Lyttleton is justified in compromising and/or paying from the deceased’s personal estate debts owing on various outgoings of the Tuerong property and debts owing to Murray Irrigation Limited and the Edward River Council which appeared to be associated with the Deniliquin property;

(b) advice/direction as to whether Mr Lyttleton is justified in commencing proceedings against Philippe to seek damages for breach of clause 6(c) of the 2017 deed in respect of the payment of the Tuerong property outgoings and advice as to whether Mr Lyttleton is justified in commencing proceedings against Philippe for indemnity pursuant to clause 3 of the 2017 deed in respect of money paid to Murray Irrigation Limited and the Edward River Council;

(c) advice/direction as to whether Mr Lyttleton is justified in giving notice and/or seeking that Philippe deliver up vacant possession of the Tuerong property.

Judicial advice – general principles

The general principles applicable to judicial advice under Order 54 are well-established.

In making an application for judicial advice, the applicant must point to the existence of a question relating to the management or administration of trust property or a question regarding the interpretation of the trust instrument.^[3] The administrator or trustee, who may be a limited administrator, must then place all relevant material before the court and seek judicial advice as to whether, in those circumstances, the trustee would be justified in taking a certain course.[4]

There are no implied limitations on the power to give advice. The procedure is summary in character, intended to enable questions relevantly arising in the administration of the trust to be resolved cheaply and simply. The function of giving the advice is to give personal protection to the administrator or trustee in respect of the course of action which is the subject of the application.[5] Obtaining judicial advice resolves doubt about whether it is proper for a trustee to pursue a course of conduct.[6]

In giving the advice, the Court must be guided by what it perceives to be in the best interests of the trust or estate.[7]

In Alsop v Wilkinson v Neary,[8] Lightman J identified three kinds of dispute in which trustees may be involved. The second of these is a beneficiaries dispute where one or more of the beneficiaries dispute the propriety of any action the trustees have taken or may take. Where the subject matter of the questions for judicial advice involves a dispute between beneficiaries, a question may arise as to whether it is more practical and fair to leave the competing claimants to the beneficial interest to contest the litigation among themselves at their own risk as to costs, with the trustee a necessary but inactive party, or whether it is more practical and fair that the trustee be the active litigant, with recourse to the trust fund for the costs of the litigation.[9]

The High Court considered the Supreme Court’s jurisdiction to give judicial advice under Order 54 in the case of Macedonian Orthodox Community Church.[10] In that case, the plurality of Gummow ACJ, Kirby, Hayne and Heydon JJ cautioned against elision of judicial advice proceedings and the trial of the issues to be agitated in proceedings about which advice is sought.[11]

Overview of parties’ respective positions on advice/direction/declarations
Limited administrator

Counsel for Mr Lyttleton (Mr Baum) provided detailed submissions, and Mr Lyttleton placed extensive evidence before the Court, on the questions raised by his summons.

The position of Mr Lyttleton was that the various controversies that arise can properly to be described as a ‘beneficiaries’ dispute’ as defined by Lightfoot J or something similar to that. Mr Lyttleton regarded it as appropriate to avoid the fray after itemising the topics on which he seeks judicial advice. He noted that the brothers are well placed as protagonist and contradictor on all the relevant issues, and he preferred to leave the substantive dispute to them.

Robert Donat

Counsel for Robert Donat, Ms Bartfeld, provided detailed written submissions. Ms Bartfeld submitted that the Court should answer virtually all the questions for advice in the affirmative, and should declare that Philippe is liable for the debts the estate will be meeting by payments associated with the Tuerong property and the Deniliquin property, and that the Court should forthwith grant Mr Lyttleton recovery of possession of the Tuerong property. Robert’s affidavits also make it clear that he would prefer that Mr Lyttleton be empowered to sell it and get its funds into the estate as soon as possible.[12]

Ms Bartfeld submitted that Philippe has been in unlawful occupation of the Tuerong property for an extended period, since at least May 2022, and this must be brought to an end. The role of a limited administrator pendente lite has been described as preserving the estate.[13] However, this does not automatically require preservation of the factual status quo. Here, Ms Bartfeld submitted the occupation by Philippe has no lawful justification. Also, his continued possession of the Tuerong property, without payment of compensation to the estate and without any clear terms, has resulted in outstanding outgoings on the property (council rates and water bills) being unpaid. And for all these reasons, Ms Bartfeld contended, Philippe’s occupation is antithetical to the proper preservation of the estate.

Ms Bartfeld relied on Theocharous v Theocharous,[14] especially at [53] per Parker J. Ms Bartfeld submitted that merely foreshadowing a claim is no justification for continued rent-free occupation of an estate property, and cannot stand in the way of the legal personal representative’s right and duty to take possession. Ms Bartfeld submitted that the dispute about occupation has been clearly on foot for at least three years (since the licence under the 2017 deed came to an end six months after Davena’s death), that Philippe has had every opportunity to explain any claim to be lawfully in possession, and that Philippe has been delaying in circumstances where the factual status quo involving his rent-free occupation of the property is to his advantage.

Ms Bartfeld submitted that, in advising Mr Lyttleton to pay the outstanding debts, the Court should at the same time and as a condition of giving that advice also find – and order or declare – that Philippe must indemnify the estate for those amounts. She submitted that it would be wasteful and inefficient for the Court to direct Mr Lyttleton to commence proceedings for the recovery of debts from Philippe, as he has clear liability and no defence. She invited the Court to apply the 2017 deed in this regard, and to place great weight on numerous admissions made in correspondence on behalf of Philippe over the years that he has responsibility to pay the debts. She said the Court must conclude that Philippe is liable under its provisions for the Tuerong property outgoings and, in respect of the Deniliquin property, for the Murray Irrigation Limited and Edward River Council debts as well.

Ms Bartfeld submitted that the Court should answer the question concerning the payment by the estate of the Tuerong property outgoings and Murray Irrigation Limited and Edward River Council debts as follows: Yes, save that the court declares that Philippe Donat is liable under the 2017 Deed for payment of the debts and any interest accrued thereon and is ordered to pay such amounts to the limited administrator within 30 days of such order.

The answer she proposed in respect of the question about commencing proceedings against Philippe was: Yes, to the extent any damages or indemnity are not satisfied by the order sought in answer to question 1.

As to advice regarding the giving of notice to Philippe to terminate his licence to farm cattle at the Tuerong property, Ms Bartfeld submitted that the answer should be: No, because no notice terminating the licence is required to be given because it terminated by operation of clause 6 of the 2017 Deed of Agreement six months after the date of the deceased death. As to the remaining questions regarding possession of the Tuerong property, Ms Bartfeld contended that not only should Mr Lyttleton be advised to take steps to recover possession of the Tuerong property,[15] but also an order for possession should be forthwith granted.[16]

Philippe Donat

Philippe Donat provided brief written submissions prepared by his solicitor. On the day of the hearing, Philippe was represented by senior counsel, Mr Ower KC, who very helpfully amplified those submissions.

By way of overview, Mr Ower acknowledged that there is a relatively low bar for the court to reach satisfaction that judicial advice can be given on the topics raised by Mr Lyttleton, and Mr Ower was not able to raise any real impediment to me giving that advice, save to urge that I place significant weight on his characterisation of this dispute as a ‘beneficiaries dispute’ within the meaning of Lightfoot J’s taxonomy.

My response to this submission is that I accept that perhaps, in a sense, this is a dispute between potential beneficiaries, but even so, in the particular circumstances of this case, I do not place great weight on this matter. I consider that it is appropriate for the limited administrator to continue to perform the role he has been performing and to take active steps as he sees fit in accordance with the advice and directions I will be giving.

By the end of Mr Ower’s submissions at the hearing, it was clear to me that Philippe’s position on the debts allegedly payable by the estate was as follows.

(a) As to the outgoings of the Tuerong property, Mr Lyttleton should be advised that he is justified in paying them, and Philippe is unable to raise any genuine basis for contesting his liability to indemnify the estate for those outgoings. Mr Ower agreed with the proposition that the Court should quell as much of the remaining controversy as it can and progressively. That is the course best adapted to the purposes of the Civil Procedure Act 2010. There was no proper reason for delaying a declaration quelling any remaining doubt on that question.

(b) As to the Murray Irrigation Limited and Edward River Council liabilities, judicial advice may be provided to Mr Lyttleton on those topics but otherwise the Court should be wary not to elide its advice role and its determination of any disputes the subject of advice. My understanding of Mr Ower’s position is that (in contrast to the case of the Tuerong property outgoings) there are reasons why I should not make any declaration that Philippe is liable to pay the liabilities to Murray Irrigation Limited or Edward River Council. The written submissions for Philippe submitted that if the Murray Irrigation Limited debt was not paid upon the sale of the Deniliquin property, then it should be paid in the first instance from estate funds and then accounted for as part of the ‘winding up’ of the partnership. Mr Ower did not address the merits of the arguments sheeting home liability to Philippe under the 2017 deed in detail, or provide any answer to the admissions made by Philippe’s solicitors on the relevant debts. However, I understood his position to be that (unlike the case of the Tuerong property outgoings) it would not be appropriate at this time for the Court to declare Philippe’s liability to indemnify the estate for the Murray Irrigation Limited or Edward River Council debts.

(c) As to possession of the Tuerong property, Mr Ower was again not able to resist the proposition that it would be appropriate to provide judicial advice on the topic of providing notice to vacate and seeking to obtain vacant possession from Philippe, but Mr Ower submitted clearly that it would be inappropriate to go any further in the context of an application for judicial advice. In particular, he said it would be inappropriate to hear and determine paragraph 5 of Mr Lyttleton’s summons seeking a summary order for possession of the Tuerong property, at least at this time. Mr Ower relied on the High Court’s caution against elision of the advisory and adjudicative roles ‘in the same proceeding’ in Macedonian Orthodox Community Church at [74]. However, Mr Ower did not submit that a separate proceeding would be have to be commenced. He accepted that the expedient of permitting the parties to agitate the real issues in dispute in this single proceeding, including by seeking substantive orders, was permissible and that it promoted the overarching purpose in s 7 of the Civil Procedure Act 2010. He submitted that the matter was one of timing and fairness. The Court must demarcate its exercise of the advisory and adjudicative functions, giving a fair opportunity to a person affected to resist an exercise of the adjudicative function, separately from and following the Court’s giving any advice under Order 54. I accept that this is the best way to adapt the High Court’s remarks in Macedonian Orthodox Community Church to the circumstances of the present case.

I asked Mr Ower to address the arguments advanced in written submissions on behalf of Philippe asserting a right to occupation of the Tuerong property on the basis of an argument that the Tuerong property was ‘partnership property’ and based on an estoppel that allegedly arose from Robert having signed the 2017 deed without disclosing the terms of the 2013 will to Philippe. I was not able to extract any additional assistance from Mr Ower on these topics beyond what appears in the written submissions.

Further as to the possession of the Tuerong property, Mr Ower submitted that there would be no utility in Mr Lyttleton obtaining possession of that property now, and that question should be determined in the course of or at the same time as the resolution of the probate proceeding. Mr Ower explained that submission by drawing the Court’s attention to the differing contents of the 2013 and 2009 wills. In the event that probate of the 2013 will is refused, it will be necessary for the estate to be administered in accordance with the 2009 will. Clause 4(a) and (b) of that will would then become subject to various constructional arguments. One possibility is that Philippe would have an entitlement under clause 4(b) to purchase the Tuerong property rather than it being made available for sale to the public. Mr Ower submitted that, as the sale of the Tuerong property would prejudice performance of the 2009 will, Mr Lyttleton would not be able to sell it, so it would be futile for Mr Lyttleton to obtain possession of the Tuerong property now, and better for the estate for Philippe to remain in occupation farming it.

Ms Bartfeld, on behalf of Robert, responded to this argument about the utility of Mr Lyttleton recovering possession of the Tuerong property as follows. Ms Bartfeld said that Mr Lyttleton would, having regained possession of the Tuerong property, be in a position to make it available on commercial terms for pastoral and agricultural activity pending resolution of the probate proceeding. She pointed out that Philippe had been in occupation without any agreement being in place as to rent or other form of compensation of the estate for more than three and a half years since the death of Davina and more than three years since the expiry of the licence conferred by clause 6 of the 2017 deed.

Analysis
Tuerong property outgoings

It is essentially uncontroversial that I should advise Mr Lyttleton to pay or compromise the outgoings on the Tuerong property, namely:

(vii) Mornington Peninsula Shire Council’s claim for outstanding council rates and charges, which was in the amount of $9,592.45 as of 20 March 2025; and

(viii) South East Water’s claim for unpaid water bills, which was recently quantified at about $681.

As noted above, Mr Ower was unable to dispute the utility and appropriateness of an accompanying declaration that Philippe is liable to indemnify the estate for these amounts. There is no need for a separate proceeding to be commenced, or even for a summons to be filed, and any such formality would be wasteful and inefficient, and not required by fairness or the interests of justice, in the circumstances. I will make such a declaration forthwith, at the same time as providing the relevant advice to Mr Lyttleton.

Deniliquin property – associated debts

As to the amounts said to be associated with the Deniliquin property, the position is more complex.

There are two such alleged debts – Murray Irrigation Limited’s claim (in the amount of $130,148.96 as of 31 May 2025) and Edward River Council’s claim (of something in the range of about $4,000 to $5,000).

For each there are in essence two questions: is there a proper basis on which those entities claim that the estate owes them those amounts, and what are the estate’s rights against Philippe in respect of them?

Murray Irrigation Limited

As to the first question, as regards to Murray Irrigation Limited, Mr Baum on behalf of Mr Lyttleton took me through the Water Entitlements Contract between Davena Donat and Murray Irrigation Limited.

After going through the contract and available records, I am satisfied that there is at least a strongly arguable case that Murray Irrigation Limited has a claim on the estate for the outstanding water charges, even though they were very largely incurred from May 2018, and across a period when the deceased no longer appeared as registered proprietor on the titles of the Deniliquin property.

That result seems grossly counterintuitive, even when one puts the 2017 deed aside from the analysis, and it therefore requires detailed explanation.

The Water Entitlements Contract was entered into by Davena in 2006, at about the time of purchase of the Deniliquin property for the pastoral partnership she was conducting from that time with Philippe, and its registration in her name.

An application form signed by Davena as transferee on 13 April 2006 records the transfer to her of five shares and five class C water entitlements of Murray Irrigation Limited. Correspondence from Murray Irrigation Limited on October 2006 refers to a permanent transfer of 775 shares and water entitlements.

Also in evidence is the Water Entitlements Contract between Davena and Murray Irrigation Limited itself, accompanied by certificates recording five shares and five class C water entitlement certificates.

That contract describes Davena as the Water Entitlements Holder. It provides at clause 10.1 that the Water Entitlements Holder agrees to pay to Murray Irrigation Limited as and when required all charges payable by the holder in respect of the Water Entitlements in accordance with the charges policy.

The charges policy is defined as Murray Irrigation Limited’s charges levied from time to time. The current version of the charges policy shows that it specifies unit prices for various kinds of services and supply.

No explanation was provided about the references to ‘691’ units of water delivery, and I am not therefore able to be perfectly satisfied as to the mechanism by which Murray Irrigation Limited claims to be entitled to all the amounts in the monthly invoices.

The Water Entitlements Contract contemplates transfer of entitlements, but on condition of approval by the board: cl 2.3.1. Clause 21.2 provides that a notice of termination of the contract is ineffective unless accompanied by all documents necessary to affect a transfer of the relevant shares and entitlements.

I was taken to correspondence in 2020 in which Robert as administrator for his mother attempted to transfer the water entitlements from Murray Irrigation Limited in his mother’s name. It appears that the transfer was not accepted because of outstanding debts at the time.

A letter from Philippe’s solicitors at the time, Bayside Solicitors, dated 9 April 2020, stated that Philippe had been ‘in regular contact with Goulburn Irrigation [which I take to be a reference to Murray Irrigation Limited] and is in the process of making a fresh application for the transfer of water rights and the payment of outstanding debt under Davena’s licence. Our office will be assisting with that transfer…The timeframe that your client provided to our client in respect of the compliance with the water transfer… was inadequate given the steps that are involved, in particular in relation to the transfer of water rights. The process has commenced and therefore there has now been substantial compliance towards those steps and your client suffers no prejudice, in particular given that our client has previously acknowledged that the debts are his responsibility’.

Later that month, on 20 April 2020, Robert’s solicitors wrote to Bayside Solicitors noting amongst other things that the Murray Irrigation Limited rates ‘are still outstanding in an amount of approximately $30000, despite the promises to pay them… our client also requires the application for the transfer of the water rights to proceed immediately. Your client has been continually saying that the “process has commenced”. Again, unfortunately, our client has little confidence in the comments made having regard to your client’s previous history of non compliance and not attending to his obligations.’

More broadly, I accept the following summary given by Robert’s affidavit of 21 March 2025 at paragraph 17 of the correspondence and other documents on behalf of Philippe acknowledging Philippe’s liability to pay the Murray Irrigation Limited debts:

17 Philippe’s acknowledgement of the existence of the Murray Irrigation Debts including the following:
(a) On 4 July 2017, following the signing on the 2017 Deed, Philippe’s former partner Robyn Hutchinson acknowledged that she would pay the outstanding Murray Irrigation invoice.
A copy of the email chain between myself and Robyn Hutchinson appears at page 2 of the exhibit bundle.
(b) On 8 April 2020, Philippe’s former solicitors Bayside Solicitors wrote to my former solicitors Tisher Liner FC Law and advised that “In respect of the water rates, our client has previously acknowledged the debt and is currently speaking with Golbourn Water to change the water allocation rates and to transfer the licence out of Davena’s name”.
A copy of the letter from Bayside Solicitors dated 8 April 2020 appears at pages 3 to 4 of the bundle exhibit.
(c) Following this correspondence, Philippe took steps to transfer the Murray Irrigation water entitlements into his name by having Bayside Solicitors prepare the relevant form for me to sign to facilitate the transfer, which I did.
A copy of the chain between Bayside Solicitors and myself between 24 April 2020 and 29 May 2020 appears at pages 5 to 11 of the exhibit bundle.
(d) On 3 July 2020, Bayside Solicitors advised that once the transfer of water rights is out of the deceased’s name, this would “conclude that part of the obligation under the deed”.
A copy of the letter dated 3 July 2020 appears at page 12 of the bundle exhibit.
…
(f) Two weeks after the deceased’s death on 2 November 2021, Bayside Solicitors advised that Philippe was “aware that he will be required to reimburse and indemnify the estate pursuant to the Deed of Agreement”.
A copy of the letter dated 16 November 2021 appears at page 16 of the bundle exhibit.
(g) In May 2023, Philippe filed Amended Grounds of Objection in the related 2023 proceeding in which it is stated (at paragraph 9. e) “he personally has a debt to Murray Irrigation” and “he was in arrears on rates”.
A copy of the Grounds of Objection dated 3 May 2023 appears at pages 17 to 25 of the bundle exhibit.

Mr Lyttleton deposed to his steps taken in relation to the Murray Irrigation Limited debt including correspondence between himself and Mr Karl Balian, a solicitor for Murray Irrigation Limited. In particular, he referred to email correspondence sent on 27 May 2024, during which Mr Balian stated that the debt is of the deceased’s estate, and separately that ‘we did not say the estate was liable, if we inferred this, then that was not the intention,’ and separately that all messages sent that day were ‘in error and recalled’.

Mr Lyttleton deposed that following this correspondence, on 31 May 2024, he was ordered to cease administering the estate and has not paid this debt. He recommenced his administration on 18 November 2024.

The most recent aggregated claim by Murray Irrigation Limited is that, as at 31 May 2025, in excess of $130,000 is owing to Murray Irrigation Limited.

The reasons why Murray Irrigation Limited appears to have a claim it can make against the estate for these charges rests ultimately on the construction of the Water Entitlements Contract, the fact that Davena was the signatory (although some of the paperwork originally appears to have been in Philippe’s name, struck out and replaced with Davena’s), and the failure of the attempts made by Robert to have Murray Irrigation Limited transfer Davena’s water entitlements to Philippe.

And even though it appears strongly arguable that the estate bears primary liability to Murray Irrigation Limited on the basis of these key features of the facts, there is an aspect of the invoices between Murray Irrigation Limited and the deceased’s estate which may merit further inquiry by Mr Lyttleton (in his entire discretion) and clarification by Murray Irrigation Limited before he may choose to make payment. That matter concerns the references to ‘691’ units of some kind that appear in many of the invoices, associated with the most significant quarterly charges.

As to the correspondence in 2020 relating to Robert’s attempts to achieve a transfer, without making concluded findings on this matter, it appears there is a strong argument that Robert did all that was required to achieve a transfer and that Philippe then failed to complete the transfer. These and other issues may become highly relevant at a later time if it is decided by Mr Lyttleton on behalf of the estate that Philippe should be pursued for the losses sustained by the estate due to the failure of the transfer of the water entitlements from Davena to Philippe.

The evidence suggests that Ms Hutchinson sold the property on 30 May 2025, with settlement to follow in 90 days. Mr Lyttleton deposed that it is unclear whether Ms Hutchinson will pay the Murray Irrigation Limited debt to settle the sale of the Deniliquin property.

There appears to be a possibility that the Murray Irrigation Limited debt may be paid upon the settlement of Ms Hutchinson’s sale of the Deniliquin property. If so, this might perhaps obviate the need for the estate to pay it. There was also a suggestion that the amount might be somewhat reduced by Murray Irrigation Limited adopting a self-help measure, by selling the entitlements in the deceased’s name and perhaps raising something in the order of $8,000.

I am satisfied that I should advise that Mr Lyttleton is justified in paying or compromising the Murray Irrigation Limited claim from the personal estate of the deceased. This will accord him sufficient discretionary latitude to consider the outstanding factual issues for himself, at the same time as protecting him from any adverse repercussions if and to the extent that he causes the estate to pay the Murray Irrigation Limited amounts.

Contrary to the informal application made in Robert Donat’s submissions, I will not make any declaration forthwith on the topics of whether the 2017 deed (or anything else) might require Philippe to indemnify the estate in respect of these amounts.

However, I will advise and direct that Mr Lyttleton is justified in pursuing a claim against Philippe either for indemnity under the 2017 deed in respect of the Murray Irrigation Limited amounts to be paid by the estate, or for equivalent compensation by Philippe of the estate on any other available basis that Mr Lyttleton sees fit to allege.

Edward River Council

The Edward River Council debt is, again, in a category of its own. That liability appears to be a charge in the nature of a payment for use of land outside the boundary of the Deniliquin property. There may be arguments to be made about whether the cattle grazing lease (or permit) granted to Davena in her name from Edward River Council should be regarded as giving rise to ‘all outgoings associated with the Deniliquin property’ so as to come within the indemnity provided by Philippe under clause 3 of the 2017 deed.

The evidence before me included correspondence between Mr Lyttleton and the Edward River Council in which Mr Lyttleton sought clarification of the basis on which Edward River Council asserts the estate to be liable.

As at 14 March 2024, $4,327.22 was owing to the Edward River Council. The letter from the Council noted that the property has been transferred to an Aboriginal corporation, but the Council was pursuing the estate for the debt that appears to have accrued before that transfer. On 27 May 2024, Mr Lyttleton sent a letter to Bronwyn Chaplin at the Edward River Council asking why the estate would be liable for debts relating to a property transferred to Philippe on 28 May 2018. On 28 May 2024, Edward River Council emailed Mr Lyttleton stating that the deceased’s name was still on the property as at December 2019 and was not transferred to Philippe, and forwarded an email from 14 June 2023 which stated that the deceased had a second property which was a State Forest ‘lease’, which was why the rate notice was still going to Davina. The 2017 deed did not refer to the State Forest lease.

Mr Lyttleton deposed that following this correspondence, on 31 May 2024, he was ordered to cease administering the estate and has not paid this debt.

In the documents sent to Mr Lyttleton in May 2024 by the Edward River Council there is a record specifying Davena as the ‘owner’ of the relevant lease, which was described as Morago State Forest - Occupation Permit - Grazing accompanied by various identification numbers. The evidence also included a transaction listing provided by the Council purporting the incurring of various fees and levies, and a large amount of interest, over the period 26 July 2017 to 13 June 2023.

As previously noted, Philippe had become the registered proprietor of the Deniliquin property in May 2018, pursuant to the deed made in March 2017, and the partnership between him and his mother had concluded in 2013. However, the relevant occupation permit allowing grazing near the Deniliquin property in the Morago state forest appears to have remained in Davena’s name over the period from July 2017 when these amounts were incurred. I can see no explanation for why this occurred and who was responsible for it occurring.

It was drawn to my attention that the lease (or permit) came to an end at some point in the recent past and now forms part of the property of an Aboriginal Corporation under a Native Title claim and is therefore no longer subject to lease (or permit) payments. It was not suggested, however, that this would prevent Edward River Council from pursuing the estate, as the former lease holder, for its unpaid arrears.

The evidence shows that the area in question has been transferred to the Werai Land and Water Aboriginal Corporation. The Council in its letter dated 14 March 2024 stated that as this corporation is classified as non-rateable under Division 5 of Part 2 of the Aboriginal Land Rights Act 1983, the council is pursuing the former owners, being the deceased.

Section 555 of the Local Government Act 1993 (NSW) states that ‘land that is vested in the New South Wales Aboriginal Land Council or a Local Aboriginal Land Council and is declared under Division 5 of Part 2 of the Aboriginal Land Rights Act 1983 to be exempt from payment of rates,’ is exempt from all rates.

Assuming that the amounts in question are ‘rates’ or ‘other charges’ within the meaning of the Local Government Act 1993 (NSW), the following analysis may also be relevant. Under that Act, the owner for the time being of the land is liable for the rates and charges of that land. Section 560(1) of the Local Government Act 1993 (NSW) provides that the ‘owner for the time being of land on which a rate is levied is liable to pay the rate to the council’. Section 561(a) of the Local Government Act 1993 (NSW) provides that the person liable to pay a charge is ‘the person who, if the charge were a rate and if the land on which the charge is levied were rateable in respect of that rate, would be liable under section 560 to pay the rate’. This may provide an argument that the estate is no longer liable to Edward River Council. However, it is not clear whether those provisions apply. It is not clear whether, for example, the amounts in question are ’rates’ or ‘charges’ levied by local government within the meaning of those provisions, and even if they are, it is not entirely clear that the estate escapes liability by reason of the Aboriginal corporation having become the owner of the relevant occupation permit or lease.

On balance, I am satisfied that Edward River Council has at least a strongly arguable case for a claim against the estate for the outstanding lease payments. I therefore will advise that Mr Lyttleton is justified in paying or compromising Edward River Council’s claim. This is intended to give him discretion, as well as protection should he pay the claim. As in the case of the Murray Irrigation Limited claim, he is justified in doing so.

As in the case of the Murray Irrigation Limited amount, again I will not make any declaration that Philippe is liable to indemnify the estate for the amount claimed by Edward River Council. However, I will advise that Mr Lyttleton is justified in pursuing any claim that he sees fit against Philippe in respect of this amount.

Occupation of the Tuerong property
Applicable principles concerning the role of a limited administrator pendente lite

Section 22 of the Administration and Probate Act 1958 is entitled ‘Administration pending litigation’ and sub-s (1) provides (emphasis added):

(1) Where any legal proceedings touching the validity of the will of a deceased person or for obtaining recalling or revoking any grant are pending the Court may grant administration of the estate of the deceased to an administrator who shall have all the rights and powers of a general administrator other than the right of distributing the residue of the estate and every such administrator shall be subject to the immediate control of the Court and act under its direction.

It is clear from the context provided by s 22 as a whole that the appointment of a limited administrator pendente lite is for the purpose of preserving an estate during litigation about the validity of a relevant will or otherwise about a grant of probate or administration. The case of Henderson v Executor Trustee Australia Ltd and Others[17] distils the principles relating to the role of an administrator pendente lite. The applicable principles include that:

(a) the duty of an administrator pendente lite is to manage and preserve the assets ‘for the benefit of those found to be entitled to those assets’;[18]

(b) the duty of an administrator pendente lite to preserve estate assets cannot be ‘elevated’ to undertake actions that would ‘prefer the interests of one potential … beneficiar[y] over another’, for example in cases where beneficiaries have ‘differing views as to how particular assets of the estate will best be administered’;[19]

(c) the administrator should be ‘totally dissociated from the litigation and is not to be seen to act in the role of an agent for any party’;[20]

(d) the administrator ‘must act impartially as between the potential beneficiaries’ and ‘cannot prefer the interests of one … potential beneficiar[y] over another’;[21]

(e) where potential beneficiaries cannot agree and the steps ‘proposed by the administrator might adversely affect one or more of those beneficiaries, the court will, as a general rule, give directions which will preserve the status quo’;[22] and

(f) the role of an administrator pendente lite is manifestly different to an administrator appointed under the Corporations Act 2001 (Cth), where the latter has wider powers.[23]

In my view, the principle of preservation of the status quo is directed to the preservation of the estate’s assets for the benefit of those who will ultimately, after resolution of the underlying litigation, be found to be entitled to it. It does not require strict adherence to whatever the current state of affairs may be. That is, where a person claiming as a beneficiary under an unproved will happens to be in possession of estate property without any present entitlement to do so, the court need not require that that state of affairs must necessarily continue until the underlying litigation is resolved. On the contrary, I regard the preservation principle as meaning that estate assets must be subject to the stewardship of the administrator and the estate should be protected from loss until the entitlements of any potential beneficiaries are made clear by the resolution of the underlying litigation.

Philippe continues to farm on the Tuerong property. He asserts an equitable interest in the Tuerong property. However, in my view, his affidavit material and written submissions fall short of establishing an arguable case for any such interest. I agree with what Parker J said in Theocharous v Theocharous [2025] NSWSC 45, especially at [53]: merely foreshowing a claim is insufficient. Philippe has had several years to articulate and support any such claim. He should have understood, at least at the hearing before me on 18 November 2024 when he was represented by counsel, and in the period since then, that time was running out for him to do so.

Robert contends that it is clear that any licence Philippe had to occupy the Tuerong property has long since ended. Ms Bartfeld contends that it ended on 21 May 2022, six months after the deceased’s death, under clause 6 of the 2017 deed.

I was taken to Suttor v Gundowda.[24] In that case, a contract for sale of a pastoral property made on 20 October 1947 provided that in the event of the consent of the Treasurer not being obtained within two months of that date, the contract would be deemed to be cancelled. The Treasurer’s consent was obtained outside that two month period, on 5 January 1949. On 15 January 1949, the vendor’s solicitor wrote to the purchaser’s solicitor asserting that because of the Treasurer’s consent not being obtained within the period of two months, the contract was ineffective from the end of the two month period. The High Court held that the contract did not automatically cancel at the end of the two month period and the contract was only voidable at that time and not void. The High Court also accepted that there was an oral agreement between the parties prior to that date that the time for the Treasurer’s consent would be extended for a reasonable period.

In this case, clause 6 of the 2017 deed provided a licence to Philippe to occupy the Tuerong property to the date that is six months after Davena’s death, namely 21 May 2022. Mr Lyttleton seeks advice about whether to provide notice to Philippe terminating the licence.

Notwithstanding the references to Suttor v Gundowda, the better view here is that the licence terminated well before now, and there is no utility in providing further notification.

There are two ways in which the licence was clearly terminated before now. Firstly, there seems to be a strong argument that the licence came to an end on 21 May 2022, as Robert contends. Secondly, even if this view of clause 6 is incorrect and clause 6 is to be construed in the manner the High Court construed the contract in Suttor (as merely creating a right to terminate the licence), then in any event there was correspondence from or on behalf of the limited administrator after his appointment which amounted to a notice of termination. In this regard, I was taken to correspondence sent on 5 April 2024. That letter did not in terms give notice of termination, but asserted the termination was already in effect. But a substantive reading should be given to letters of this kind, as was indeed made clear in Suttor v Gundowda itself. On this basis, the letter constituted notice of termination of the licence, if any notice was needed.

Mr Ower submitted that I should, if I was minded to give advice on this topic, advise that a further notice could be provided without prejudice to Mr Lyttleton’s ability to rely on arguments that the licence has already terminated. For that matter, it would be without prejudice to Robert’s ability to make any submissions of that kind as well. He said consequential arguments about proper accounting and mesne profits could depend on the outcome and would be for another day.

There seems to be no risk of prejudice to any party or the estate in taking the approach of advising the Mr Lyttleton may give notice without prejudice to any party arguing that the licence had already ceased in any event. On this basis, I will advise Mr Lyttleton that he is justified in giving further notice without prejudice to the assertion that the licence was already at an end, whether because it terminated in May 2022 or at some later date such as in April 2024.

Mr Ower submitted that Philippe had a proprietary interest of an equitable nature in the Tuerong property entitling him to possession, as set out in the written submissions.

I am not currently persuaded that there is any basis for this claim, or a serious question for trial in support of any such claim.

The two bases on which it was said that Philippe had such an interest were both of them difficult to follow and extremely vague.

It was said that – in some unexplained or imprecisely explained manner – the Tuerong property is ‘partnership property’. However, it is uncontroversial that the Tuerong property was not acquired by the partnership between Philippe and his mother that seems to have existed between 2006 and 2013. It was, from the outset, owned by Davena. It was owned by Davena before the partnership began and there was no suggestion or evidence that Philippe or the partnership paid anything toward its acquisition, or the repayment of borrowings for its acquisition. Nor is there any evidence of an agreement that its ownership was to be altered during or by reason of the partnership. Perhaps some farming activities of the partnership took place on it in the period 2006–2013, but that does not mean it somehow became ‘partnership property’.

Philippe deposed to making various ‘contributions’ to the Tuerong property, but these were all in the nature of maintenance, save for one: the only substantive contribution he deposed to was that he built and paid for a cattle yard and a machinery shed. In deposing to this, he did not specify when this occurred or what money was used, or if any agreement was made about these structures and the basis on which they were being added to the property. Even assuming these structures were built during the partnership and paid for by Philippe or with proceeds earned by the partnership, in my view this is insufficient to raise an arguable claim of an equitable interest in the Tuerong property allowing Philippe to continue to enjoy its possession. At most it may raise a case for some form of compensation, assuming the court or administrator could be persuaded that the completion of the winding up of the partnership has not yet occurred, and assuming that no defence such as laches or acquiescence prevents the agitation of such a claim.

If the 2017 deed can be relied upon, it is even clearer that no such claim can arise, for the deed contains mutual releases from all claims, and was clearly made by way of bringing all outstanding issues arising from the end of the partnership to closure.

The second argument advanced on Philippe’s behalf was that Robert, acting as Davena’s administrator, entered into the 2017 deed with Philippe without disclosing to Philippe the terms of their mother’s 2013 will. It is said that this somehow estops Robert from being able to rely on the 2017 deed.

I do not see how this argument could possibly lead to the conclusion that Philippe somehow has a proprietary interest permitting him to occupy the Tuerong property. Absent the mutual releases in the 2017 deed, perhaps there is one less argument against Philippe’s assertion that he retains an equitable right of some kind to possession of the Tuerong property, but that is all. The estoppel argument cannot generate such a right. As already mentioned, in my view, the current state of the material and submissions does not give rise to any arguable right of that kind.

However, in spite of the absence of any apparent basis for Philippe to assert lawful possession of the Tuerong property, I will not forthwith further hear or determine paragraph 5 of Mr Lyttleton’s summons, seeking an order for recovery of possession of the Tuerong property under Order 53.

I will give Philippe a brief opportunity to augment his submissions and material before hearing and determining that application. I will then hear the Order 53 application on a suitable day after that. At the same hearing, I will also hear any objection by Philippe against the affidavits received into evidence on the judicial advice application being also received in support of the Order 53 application.

The views I have expressed about him having no apparent lawful basis to occupy the Tuerong property on the current material and submissions may be open to alteration if cogent evidence is provided by Philippe, and a cogent claim is articulated, before the return of the application by Mr Lyttleton for recovery of possession of the Tuerong property pursuant to Order 53.

If I am persuaded of this, it will be open to the Court to make directions timetabling a trial on any such claim, or making provision for the commencement of a separate proceeding.

In short, and noting the cautionary remarks of the High Court in Macedonian Orthodox at [74], I will not further entertain and will not determine Mr Lyttleton’s application under Order 53 at this time. I will provide advice to him that he is justified in pressing that application at the next return date in July, or taking any other step he sees fit to obtain vacant possession of the Tuerong property from Philippe.

I will provide Philippe with a further and final opportunity to articulate the basis of his claim to be in lawful occupation of the Tuerong property and to provide any supporting evidence. If that claim and its supporting evidence are insufficiently cogent, it will be open to the Court to make an order for recovery of possession in favour of Mr Lyttleton at the next return date.

Conclusions

As at 20 March 2025, $9,592.45 in debt was owing by the deceased’s estate to Mornington Peninsula Shire Council.

I direct that Mr Lyttleton is justified in compromising and/ or paying from the deceased’s personal estate any debt (and interest thereon) owing by the deceased or her estate to the Mornington Peninsular Shire, in respect of 118 Coolart Road, Tuerong. Mr Lyttleton is justified in commencing proceedings against Philippe Donat whether under the deed between Philippe Donat and Robert Donat as administrator for the deceased dated 27 March 2017 or otherwise in respect of the Mornington Peninsular Shire debt.

As at 15 May 2025, $681.35 in debt was owing by the deceased’s estate to South East Water.

I direct that Mr Lyttleton is justified in compromising and/ or paying from the deceased’s personal estate any debt (and interest thereon) owing by the deceased or her estate to South East Water, in respect of 118 Coolart Road, Tuerong. Mr Lyttleton is justified in commencing proceedings against Philippe Donat whether under the deed between Philippe Donat and Robert Donat as administrator for the deceased dated 27 March 2017 or otherwise in respect of the South East Water debt.

The most recent notice issued to the estate from Murray Irritation Ltd is dated 31 May 2025 and states that the amount outstanding is $130,148.96.

I direct that Mr Lyttleton is justified in compromising and/or paying any debt (and interest thereon) owing by the deceased or her estate to Murray Irrigation Limited in respect of or in any way associated with 2297 Pretty Pine Road, Morago, New South Wales. Mr Lyttleton is justified in commencing proceedings against Philippe Donat whether under the deed between Philippe Donat and Robert Donat as administrator for the deceased dated 27 March 2017 or otherwise in respect of any amounts that shall be paid to Murray Irrigation Limited.

As at 14 March 2024, $4,327.22 was owing to the Edward River Council.

I direct that Mr Lyttleton is justified in compromising and/or paying any debt (and interest thereon) owing by the deceased or her estate to Edward River Council in respect of or in any way associated with 2297 Pretty Pine Road, Morago, New South Wales. Mr Lyttleton is justified in commencing proceedings against Philippe Donat whether under the deed between Philippe Donat and Robert Donat as administrator for the deceased dated 27 March 2017 or otherwise in respect of any amounts that shall be paid to Edward River Council.

Mr Lyttleton seeks judicial advice as to whether he is justified in to the extent necessary, giving notice pursuant to clause 6 of the 2017 deed terminating Philippe’s licence to undertake cattle farming on the Tuerong property.

I direct that Mr Lyttleton is justified in giving notice whether pursuant to the 2017 deed or otherwise terminating any licence claimed by Philippe Donat to undertake cattle farming on the Tuerong property, without prejudice to any assertion any party wishes to make that no such licence exists.

Mr Lyttleton seeks judicial advice as to whether he is justified in seeking that Philippe deliver up possession of the Tuerong property.

I direct that Mr Lyttleton is justified in seeking an order pursuant to Order 53 of the Rules or the Court’s inherent jurisdiction, for recovery of possession from Philippe Donat of the Tuerong property or otherwise seeking that Philippe Donat deliver up vacant possession of the Tuerong property.

[1]Robert’s affidavit dated 15 November 2024 was served late and not received at the hearing on 18 November 2024.

[2]The address has been referred to interchangeably as 2297 Pretty Pine Road, Deniliquin, New South Wales and 2297 Pretty Pine Road, Morago, New South Wales in the material.

[3]See, eg, In the Estate of Margaret Anne Cervo (administrator pendente lite appointed) [2024] ACTSC 253 (McWilliam J).

[4]Application by David Davidson Financial Services Pty Ltd & Ors (as trustees of various trusts) [2024] VSC 445, [7] (Croft J); Re Care Super Pty Ltd [2021] VSC 805, [24] (Lyons J).

[5]Re Balsa Rejus Pty Ltd [2022] VSC 223, [14] (Delany J); Re Care Super Pty Ltd [2021] VSC 805, [23] (Lyons J).

[6]Re Care Super Pty Ltd [2021] VSC 805, [27] (Lyons J).

[7] Re Application by Cottee [2013] NSWSC 47, [35] (Hallen J).

[8][1996] 1 WLR 1220, 1223-1224 (Lightman J).

[9]Re Balsa Rejus Pty Ltd [2022] VSC 223, [20] (Delany J); Re Uncle’s Joint [2014] NSWSC 321, [26] (Brereton J).

[10]Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 (Macedonian Orthodox Community Church).

[11]Ibid 94 [74].

[12]Robert’s affidavit of 4 April 2025, [51].

[13]See e.g., Henderson v Executor Trustee Australia Ltd [2005] SASC 477.

[14][2025] NSWSC 45.

[15]Ms Bartfeld’s proposed response to this question is: Yes, and the Court orders that Mr Philippe Donat must deliver up vacant possession of the Tuerong Property within 30 days of the date of such order.

[16]Ms Bartfeld’s proposed response to paragraph 5 of the summons is: Yes, pursuant to Rule 53.07 of the Supreme Court (General Civil Procedure Rules) the court order that the limited Administrator recover possession of the land described in the limited Administrator’s summons dated 3 December 2024 and more particularly described in Certificates of Title Volume 8319 Folio 917 and Volume 8679 Folio 117.

[17](2005) 93 SASR 337; [2005] SASC 477.

[18]Ibid [44] (Debelle J, Anderson J agreeing at [131]). Debelle J then went on to note at [45] that an administrator’s duty is similar to that aspect of a trustee’s duty and requires them to act impartially between the beneficiaries, citing Knox v MacKinnon (1888) 13 App Cas 753, 768.

[19]Ibid [48] (Debelle J).

[20]Ibid [122] (Anderson J), noting Tomkinson v Hersey (1983) 34 SASR 181.

[21]Ibid [45], [51]–[53], (Debelle J); [125] (Anderson J).

[22]Ibid [45] (Debelle J), citing In the Estate of Hanna (1881) 7 VLR (IP & M) 44.

[23]Ibid [46]–[47] (Debelle J).

[24](1950) 81 CLR 418.

[2025] VSC 383

20 June 2025 (oral ex tempore); 27 June 2025 (revised) (First revision 1 July 2025)