Parker v Mielicki [2003] VSC 263

Supreme Court of Victoria|2003-07-04|Before: Teague J

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

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

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

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

On 6 February 2003, the plaintiff moved to further administer the estate by selling the family home. A letter was sent by her solicitors calling on the defendant to move out of the family home. The defendant has not moved. On 15 April 2003, the plaintiff applied for an order under Order 53. She swore an affidavit as to the facts leading to the making of the application. The defendant also swore an affidavit. He said that he sought an adjournment of the Order 53 application until after the Part IV application had been determined. He also suggested that orders be made for a speedy hearing of both applications.

On 22 May 2003, Master Wheeler made orders, the effect of which was to accede to what the defendant sought. The plaintiff appealed. The appeal came before me on 11 June 2003 in the Practice Court. I had before me not only the two affidavits earlier referred to. I had an affidavit sworn by the defendant and filed in the Part IV proceeding. I also had an affidavit sworn by the plaintiff in the Order 53 proceeding, which addressed matters raised in the defendant's affidavit in the Part IV proceeding. Those affidavits went to some potentially contentious matters such as the financial position of the three siblings and their attitude to their mother. The defendant also referred to matters linking him to the family home: he had lived there as a child; he had helped the deceased in its building; he had cared for his mother there; he had offered to buy the house; his daughter lives in the home with him.

Submissions were made to me by Mr Isles for the plaintiff and Mr Cook for the defendant. I indicated my reasons for making an order for possession, for declining to grant an adjournment, for making an order for a stay of 60 days, and for giving directions otherwise. What I said was not recorded. I now set out my reasons.

I do not propose to refer to, although I have read and had regard to, other decisions as to O53 proceedings, namely: Donson Industries Pty. Ltd v Aston (Young CJ, 5 July 1991), Palazzo v Pullen (Brooking J, 24 July 1992), Melbourne Anglican Trust Corp v Greentree (Vincent J, 29 May 1997), Pappas v Bowmark Pty Ltd [1998] VSCA 120 and Williams v Rampino [2002] VSC 343. I considered this to be a much clearer case than any of them. I was not satisfied that there was a question to try. I was satisfied that discretionary considerations operated strongly in favour of not granting an adjournment. Albeit with reservations, I was satisfied that discretionary considerations warranted my granting a stay of 60 days.

I accept that, while he was caring for his mother, the defendant was appropriately living at the family home, as a licensee. After his mother went into the hostel, he continued to live there as licensee. Once he was called on to leave by the administrator, he had no right to remain as a licensee. He has been since then a trespasser.

I can see no proper basis for granting an adjournment. I accept that the defendant may well have a good prospect of success in his application to bring a Part IV application out of time. With rather more reservations, I accept that he may have some prospects of success in the Part IV application itself. The reservations derive from my assessment that his position relative to that of his mother seems to be extremely weak. Her financial status is far from clear. The position as to compliance with the requirement for the provision of an accommodation bond for the hostel is at least concerning. I have only an outline of the position in that regard. There are enough indications that her needs are likely to be better attended to if the family home is sold, with the proceeds being held potentially for her. In any event, I cannot see that a double success in the Part IV proceedings would avail him relative to the family home, apart from possibly providing him with somewhat more money to contribute to a purchase at a reasonable price. I do not accept that the defendant's position, relative to those applications, is prejudiced if further steps are taken in the administration of the estate. Clearly it is appropriate to take steps to have the Part IV applications heard as soon as possible. I was given no explanation as to why the defendant had not proceeded more expeditiously to date. There is scarcely an incentive to move quickly if the longer the delay, the longer the defendant could have enjoyed free accommodation. Little weight can be given to the defendant's claim that he has a special attachment to the home, nor to his having been prepared to purchase it at a figure which appears to be unrealistically low.

With reservations, I concluded that the need to effect a sale to potentially better look after the interests of Josephine Mielicki is not so pressing that the defendant should be removed forthwith. I was referred to McPhail v Persons, names unknown [1973] 1 Ch. 447. The Court of Appeal was concerned with a provision comparable to Order 53. Lord Denning M.R. spoke of the court having no discretion to suspend the order. But that was a case of squatters. This is a case of a family member who is a licensee, whose right to remain has been revoked. After revocation, the licensee becomes a trespasser. He must be allowed a reasonable time in which to leave and remove his goods: Robson v Hallett [1967] 2 QB 939. I granted a stay of 60 days, which I considered to be more than generous in the circumstances.

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