Re Lapan; McMurray v Lapan
[2018] VSC 104
•7 March 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY & PROBATE LIST
S CI 2017 04217
IN THE MATTER of an application pursuant to Order 53 of the Supreme Court (General Civil Procedure) Rules 2015 for recovery of land
-and-
IN THE MATTER of an application pursuant to rule 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 for directions in relation to the administration of the estate
| LUCY (LUDMILA) MCMURRAY (as executor of the estate of the late NILA LAPAN deceased) | Plaintiff |
| v | |
| STEFAN LAPAN | Defendant |
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JUDGE: | McMillan J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 February 2018 |
DATE OF JUDGMENT: | 7 March 2018 |
CASE MAY BE CITED AS: | Re Lapan; McMurray v Lapan |
MEDIUM NEUTRAL CITATION: | [2018] VSC 104 |
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ESTATES — Where administration of estate frustrated by defendant’s continuous and blatant failure to vacate estate property — Relief granted to plaintiff — No point of principle — Supreme Court (General Civil Procedure) Rules 2015, Orders 53 and 54.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A Bartfeld | White and Mason Lawyers |
| Defendant in person | No appearance | Not applicable |
HER HONOUR:
Introduction
Nila Lapan died on 9 October 2013 (‘the deceased’), leaving a will dated 22 December 2010 (‘the last will’) and a penultimate will dated 12 August 1984 (‘the penultimate will’). The deceased is survived by her two adult children, the plaintiff and the defendant.
The principal asset of the estate comprises a property at 2 Taranto Court, Boronia (‘the property’). The defendant resided at the property with the deceased from 2009 onwards. After the death of the deceased, the defendant remained in the property and rented part of the property to tenants.
Deceased’s wills
The deceased’s last will named the defendant as executor and trustee, and left her estate to her husband, Peter Lapan, with the majority of the residue left to the defendant if the deceased’s husband predeceased her.
The deceased’s penultimate will named her husband as executor, with the plaintiff and the defendant as her substitute executors. Pursuant to the penultimate will, the deceased’s estate was left to the deceased’s husband and, if he predeceased her, to the plaintiff and the defendant in equal shares.
On 15 September 2014, the defendant applied for probate of the deceased’s last will. On 29 October 2014, the plaintiff objected to the defendant’s application for a grant of probate on the grounds that the deceased lacked testamentary capacity and the defendant exerted testamentary undue influence on the deceased at the time she made the last will.
Terms of settlement
On 28 September 2016, the probate proceeding was resolved at a round table conference and heads of agreement were signed by the parties. At the settlement conference, the defendant was represented by his litigation guardian, Mr Richard Kent. On 14 October 2016, the terms of settlement, which included a term that the defendant vacate the property by 31 March 2017, were signed by the parties.
On 29 March 2017, some five months after the terms were signed, the defendant’s litigation guardian issued a summons seeking approval of the compromise, returnable on 28 April 2017. On 23 May 2017, the terms of settlement were approved by the Court. As at this date, the defendant remained living in the property.
From the date of approval of the compromise, certain proposals were put to the plaintiff by the defendant’s litigation guardian. On 22 June 2017, the plaintiff inspected the property and noted that the property required a number of repairs in order for it to be sold.
Probate of the deceased’s penultimate will was granted to the plaintiff on 26 July 2017. The defendant’s litigation guardian continued to re-negotiate certain matters with the plaintiff. On 28 September 2017, the defendant’s litigation guardian advised the plaintiff that the defendant’s financial position did not allow him to vacate the property and that the defendant required financial assistance from the estate in order to obtain alternative accommodation.
On 18 November 2016, a fire broke out at the property that significantly damaged the property and a neighbouring property.
Plaintiff’s application
On 19 October 2017, the plaintiff sought relief and advice in the administration of the deceased’s estate as follows:
(a) an order that the defendant vacate the property within 30 days of the judgment of the Court;
(b) whether she is justified in seeking orders against the defendant for the recovery of the following:
(i)
the costs incurred by the plaintiff as a result of the defendant’s
non-compliance with the terms of settlement;
(ii) the costs incurred by the defendant’s litigation guardian as a result of the defendant’s non-compliance with the terms of settlement;
(iii) rental of $420 per week, calculated from 31 March 2017 until the date the defendant vacates the property;
(iv)the sum of $9,5000 plus necessary additional expenses required to prepare the property for sale;
(v) any losses against the deceased’s estate caused by the fire at the property; and
(vi)the plaintiff’s costs of the application.[1]
[1]Pursuant to Supreme Court (General Civil Procedure)Rules 2015 OO 53, 54.
On the first return of the plaintiff’s application on 3 November 2017, the proceeding was adjourned to allow the parties to resolve certain preliminary matters.
At the next hearing on 8 December 2017, the defendant appeared in person. On that day, counsel for the plaintiff received confirmation from the defendant that there were tenants ‘unofficially’ living in the property. The defendant informed the Court that he was ‘happy for the vacating date to be decided’ but that he wanted ‘everything else’ to be adjourned. Orders were made for the defendant to deliver up vacant possession of the property to the plaintiff by 15 January 2018 and the proceeding was adjourned to 28 February 2018.
By email dated 11 December 2017, the Court forwarded the orders made 8 December 2017 to the parties and informed them that the plaintiff’s application pursuant to Order 54 of the Supreme Court (General Civil Procedure) Rules 2015 was listed for hearing at 10.30 am on 28 February 2018. Hard copies of the 8 December 2017 orders were also sent to the plaintiff and the defendant, with the defendant’s letter sent to the property.
The defendant failed to appear in Court on 28 February 2018 and the plaintiff’s application proceeded in his absence. In addition to affidavit sworn 18 October 2017 by the plaintiff and by the defendant’s litigation guardian on 6 December 2017 in relation to the application, the plaintiff relied on two further affidavits: her affidavit sworn 26 February 2018 and the affidavit of the plaintiff’s solicitor, Perveen Maan, sworn 7 February 2018.
At trial, the plaintiff sought orders that the costs incurred by the estate as a result of the conduct of the defendant, as set out in the affidavits filed on her behalf, be paid or retained out of his share of the estate, rather than by him personally. In view of the defendant’s failure to vacate the property in breach of the orders made 8 December 2017, the plaintiff also sought a further order that the defendant vacate the property and deliver up vacant possession of the property to the plaintiff by 2 March 2018.
In the plaintiff’s latest affidavit, the plaintiff deposed to certain actions taken by her after the hearing on 8 December 2017 to assist the defendant in bringing the proceeding to a final resolution. The plaintiff sought agreement from the defendant for her estate agent to conduct an inspection of the property. On 13 December 2017, the defendant informed the plaintiff he did not want her estate agent to conduct a complete assessment of the scope of works required to prepare the property for sale, that he required extra time to vacate the property and he wanted $7,500 transferred into his bank account as soon as possible. The defendant forwarded his bank account statements to the plaintiff. The statements showed the defendant received a fortnightly pension payment from 26 October 2017 to 29 November 2017 totalling $2,623.20 and, in the same period, he transferred approximately 57 per cent of the pension amount to another account in the name of ‘S Lap’ (‘the second account’). The plaintiff deposed that it is not known how those surplus funds were utilised after being transferred into the second account and those funds should have been used for the defendant’s relocation costs.
On 14 December 2017, the defendant sought the ‘promised advance urgently’ due to problems with his car. The plaintiff’s solicitors notified the defendant again that he was required to vacate the property by 15 January 2018 and that the plaintiff would not advance any funds to the defendant unless he permitted an inspection of the property, as she wished to ensure that the estate preserved funds in order to achieve the best outcome for all parties.
On 19 December 2017, the defendant permitted an inspection of the property. He did not allow the plaintiff and her agent to inspect the downstairs flat occupied by the tenants. The plaintiff observed that the accessible areas of the property inspected were in materially worse condition than at the last inspection on 22 June 2017. The plaintiff deposed that, during the inspection, the defendant followed her around and badgered her for money. In order to alleviate the defendant’s immediate financial burden, the plaintiff instructed her solicitors to propose that $2,000 be advanced to the defendant to cover his moving and storage costs, contingent on him providing vacant possession on or before 15 January 2018.
On 21 December 2017, the defendant accepted the plaintiff’s offer. Further negotiations followed concerning the payment of the money to the defendant on the basis that he would vacate the property in the week before 15 January 2018. The defendant did not vacate the property by that date. Further communications then took place between the plaintiff’s solicitors and the defendant concerning his vacating the property, including notifying the defendant that he was now required to vacate the property by 29 January 2018, but to no avail. As the plaintiff deposed in her affidavit, she ‘was left with no choice but to apply to the Court to issue a warrant of possession’.
In her affidavit, Ms Maan deposed to the plaintiff’s reasons for seeking to issue a warrant of possession for the property, namely, that the defendant, having been given notice to vacate the property by 29 January 2018, failed to deliver up possession. On 8 February 2018, the plaintiff filed a warrant of possession with the Sheriff’s Office to facilitate recovery of the property for sale. The plaintiff was informed by the Sheriff’s Office that the warrant of possession would be processed within two to four weeks, after which the warrant would be executed within 60 days. Despite the need to obtain possession of the property, the process could not be undertaken within a shorter timeframe.
Despite the defendant’s agreement on 8 December 2017 for the Court to set a date for him to vacate the property, he has blatantly and unashamedly disregarded the Court’s order. Subsequently, when the plaintiff accommodated his further requests by extending the date for him to vacate the property and providing him with further funds for his removal expenses in circumstances where his finances appeared opaque, he disregarded his agreement to vacate the property with impunity. As a result, the plaintiff, as the executor of the estate of the deceased, has been caused delay and further costs and expenses in attempting to finalise the estate of the deceased. The plaintiff deposed to her additional legal expenses as a result of the defendant’s failure to abide the orders of the Court and continuing failure to vacate the property.
It is more than four years since the death of the deceased. The ongoing failure of the defendant to abide by the terms of settlement and his continuous failure to vacate the property has prevented the plaintiff from completing the administration of the estate. In view of the defendant’s disregard of the orders, the plaintiff’s attempts to present the defendant with practical solutions to assist him in vacating the property and the defendant’s determined attempts not to vacate the property, the Court informed the plaintiff that orders would be made that day, with written reasons delivered as soon as possible. The orders were to include that the plaintiff’s costs and expenses caused as a result of the proceeding be paid or retained out of the defendant’s share of the estate, rather than paid by him personally. Accordingly, the Court made orders that the defendant vacate the property by 2 March 2018 and payment of the plaintiff’s costs and expenses be paid out of the defendant’s share of the estate. The orders were emailed to the plaintiff’s solicitors and the defendant’s personal email address in the afternoon of the same day.
On 1 March 2018 at 11.57 pm, the Court received an email from by the defendant in which he acknowledged receipt of the orders made 28 February 2018. In his email, he stated and advised that he had arrived at the Court at 10.55 am to find the hearing had concluded. The plaintiff’s legal representatives were not included as recipients to the defendant’s email despite the defendant having been told to do so previously.
On 5 March 2018, the plaintiff’s solicitors informed the Court by email that the defendant did not vacate the property by 2 March 2018 and still remained at the property. As the plaintiff’s application sought payment of rental by the defendant until he vacates the property, the Court will make a further order that the defendant pay rental until he vacates the property, which amount is to be paid from his share of the estate.
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