Re Donat; Robert Donat v Philippe Donat - [2025] VSC 383

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…

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.

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Details

Case: [2025] VSC 383
Decision Date: 20 June 2025 (oral ex tempore); 27 June 2025 (revised) (First revision 1 July 2025)

CaseChat Overview and Summary

The case of Re Donat; Robert Donat v Philippe Donat involved a dispute concerning the administration of a deceased estate. Robert Donat, the limited administrator of the estate, sought judicial advice on several matters relating to the estate's debts and property. The court was asked to provide guidance on whether it was appropriate for Robert to compromise and pay certain debts from the deceased’s estate, commence proceedings to recover debts, and terminate a licence to seek delivery up of possession of trust property.

The primary legal issues before the court involved the interpretation of contractual claims for water debts and council debts against the estate, and the appropriateness of advising on the termination of a licence and possession of trust property. The court had to determine whether the claims against the estate were uncontroversial or strongly arguable, and whether it was justified for the limited administrator to take specific steps in relation to these matters.

The court concluded that the advice should be provided to Robert concerning the debts, given the uncontroversial nature of some claims and the arguability of others. It was found that the claims for water debts were clear, while the council debts required further consideration. The court also provided advice on the steps to be taken regarding the termination of a licence and the recovery of possession of trust property, scheduling further steps without the need for separate proceedings. The court referenced previous cases and legislation, including Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand and the Civil Procedure Act 2010, to support its reasoning.

The final orders included providing judicial advice to the limited administrator on the steps to take in relation to the debts, the contractual claims, and the property issues, and scheduling further steps in the near future without the need for additional proceedings.

Orders