Plaintiff v Defendant

2 On 4 November 2019, a grant of letters of administration with the will annexed was made to the defendant. The plaintiff and the defendant are stepsons of the deceased.

3 The assets of the deceased's estate include a property known as 21 Renown Road, Balnarring in the state of Victoria (the 'Balnarring property'). The Balnarring property was the deceased's hobby farm and there is a house on the property.

4 The will provides that certain assets, including the Balnarring property, are to be held on trust on terms as set out in the schedule to the will ('the schedule'). The trust appears to have been intended as a charitable trust, with the express purposes including the use of the Balnarring property as holiday accommodation for the family and for use as an animal sanctuary. While the schedule to the will is uncertain, there is a direction that, on the vesting day, the trustee is to give the defendant an option to purchase the Balnarring property for market value as determined by a sworn valuation to be obtained by the trustee. If the defendant does not wish to purchase the property, then the trustee is to give the plaintiff the same option. If neither of them wish to purchase the property, the trustee is to sell the property. The issue of whether or not the trust is a charitable trust remains to be determined. In the event that the trust fails, the relevant assets are to be held on trust and paid in equal shares to the plaintiff, the defendant and the deceased's brother.

5 By originating motion filed 5 December 2019 the plaintiff sought, inter alia, the removal of the defendant as administrator of the estate of the deceased and that the plaintiff be appointed administrator of the estate, alternatively, the defendant obtain a sworn valuation of the Balnarring property and offer to the plaintiff an option to purchase the property at the price set by the sworn valuation.

6 Various interlocutory steps in the proceeding then took place and on 8 May 2020 orders were made that the proceeding continue as if commenced by writ. On 22 May 2020 the plaintiff filed a lengthy statement of claim alleging various breaches of duty by the defendant, sought the defendant's removal as administrator of the estate, and that the defendant personally pay for any loss caused to the estate or to the trust fund in respect of the defendant's management of certain assets of the estate. On 11 June 2020 the defendant filed his defence.

7 On 21 March 2021 the plaintiff filed an amended statement of claim. An amended defence was filed on 12 April 2021. On 27 September 2021 the parties attended a judicial mediation, which was unsuccessful. The proceeding is fixed for trial on 23 May 2023 on an estimate of five to seven days.

8 On 4 January 2022, the plaintiff attended on the Balnarring property under the supervision of the defendant's solicitor, Mr Anthony Di Benedetto. The plaintiff deposes to being 'appalled at the neglected condition of the property and the stock' and subsequently filed a summons on 1 February 2022 relevantly seeking:

(a) leave to occupy the Balnarring property, pursuant to paragraph 4.5 of the schedule in order to maintain the property and the stock;

(b) leave for the plaintiff's mother, Ms Carole [Penelope] Dunn,[1] to enter on to the Balnarring property to assist the plaintiff in all necessary agricultural works required to be performed; and

(c) the defendant to provide the plaintiff with a duplicate set of keys to the Balnarring property.

9 The plaintiff relied on his affidavits sworn 26 January 2022 and 18 March 2022 and the affidavits of Carole Penelope Dunn sworn 25 January 2022 and 24 April 2022.[2]

10 The defendant relied on his affidavit sworn 7 March 2022 and an affidavit of his solicitor, Mr Di Benedetto, sworn 7 March 2022.

11 The plaintiff filed written submissions dated 12 April 2022 and reply submissions on 22 April 2022. The plaintiff's reply submissions assert that his application simply offers a practical solution to a problem that has arisen and requires addressing without further delay. Otherwise, these submissions are critical of various paragraphs of the defendant's submissions.

12 The defendant filed written submissions on 20 April 2022. The defendant agrees with paragraph 1 of the plaintiff's submissions, that is, the last remnant of the estate is the Balnarring property, which supports a small flock of sheep and an alpaca to keep foxes at bay. Otherwise, the defendant denies the assertions in paragraphs 2 to 6 of the submissions and further submits that those paragraphs contain unsubstantiated assertions.

13 The parties agreed that the proceeding be determined on the papers.

14 The plaintiff submits that he was obliged to make his application as the Balnarring property and the stock on the property have been neglected by the defendant. He deposes that over the past few years he viewed the Balnarring property several times. When he visited the Balnarring property on 30 November 2021 he saw weeds, tangled vegetation and long grass on the property. When he attended at the property on 4 January 2022 under supervision of Mr Di Benedetto, amongst other things, the southern privacy tree line had been cut down and dumped in a pile on top of multiple horse feed sacks of rubbish, the stock were suffering from not having been recently shorn and were without a clean water supply. The house also appeared to have been occupied and the electricity and water connected and he considered that the Balnarring property was accessible to neighbours.

15 Ms Dunn deposes that she visited the Balnarring property on 30 November 2021 and found it to be overgrown with weeds, with the front gate secured with a cheap padlock.

16 In his submissions, the plaintiff takes issue with the defendant's engagement of various service-providers to maintain the Balnarring property on the basis that these costs are charged to the estate, whereas he could provide the assistance free of charge.

17 The plaintiff submits the orders sought in the summons provide a 'practical solution' to the defendant's failure to maintain the Balnarring property and as both the property and the stock require ongoing attention, they will continue to deteriorate if the orders are not made.

18 The defendant denies that he has failed in his duties to maintain and preserve the Balnarring property and disputes the plaintiff's suggestions that the Balnarring property is in a state of ruin.

19 He deposes that since his appointment as administrator, he has maintained the Balnarring property by engaging various service-providers to attend to the property. These include general farm services, mowing and slashing services, shearers and earthmoving services. The defendant exhibited various photographs of vehicles and equipment that attest to their clean condition. He also deposes to personally assisting with the upkeep of the Balnarring property and staying at the house on the property when undertaking such maintenance. For that purpose, he furnished the house with basic amenities. The defendant has maintained the stock on the Balnarring property, being five sheep and one alpaca, and all are in good health. The defendant deposes to other work carried out by him to conserve the property and to his fear that if the plaintiff and Ms Dunn have access to the property, they will remove items from it, which has happened in the past.

20 Mr Di Benedetto deposes to his visit to the Balnarring property on 4 January 2022 where he met the plaintiff there and allowed him on to the property. He deposes to the grass on the Balnarring property having been recently slashed and there being a pile of tree branches, trunks and other combustible matter, including a few empty sacks neatly placed, located on the eastern side of the property approximately 80 metres away from the house. Mr Di Benedetto did not see any rubbish on the property and considered that nothing was out of place over the whole of the property. He considered that the property was 'perfectly well maintained,' especially in the context of the recent storms and high winds on 2 and 19 December 2021.

21 Mr Di Benedetto described the house as spotless and neat and tidy, inside and out, with no visible dust on furniture or furnishings and no clutter whatsoever. He did not see any overgrown vegetation when he walked around the house. He opened the shed for the plaintiff and observed the contents were covered under tarps, which the plaintiff proceeded to uncover and re-cover.

22 Mr Di Benedetto saw five sheep grazing in an adjacent paddock where there was plenty of feed and water for them. They did not look to have been recently shorn nor did they look neglected. He observed the alpaca which appeared timid and remained at a distance. He also deposes to a section of the wire fence having been removed on the eastern boundary. The defendant deposes to the reason for this being that the next door neighbour asked the defendant for access to get heavy machinery into his property to address the recent storm damage, and that the fencing would be replaced upon the work being completed.

23 The defendant also submits that the trust in the will is expressed as a purpose trust. If it is effective to any extent as a valid charitable trust, then no natural person, including the plaintiff, the defendant and the deceased's brother, will have any interest in the Balnarring property or in the proceeds of its sale, until either the vesting day of the trust arrives, or it is conclusively determined that the trust is not a valid trust.

24 The defendant further submits that the plaintiff's interest in the estate is simply an entitlement to supervise its administration in accordance with the deceased's will and this does not confer a current interest to the plaintiff to occupy the Balnarring property.

25 The defendant also submits that the legal basis for the summons is misconceived as even if the defendant was failing to maintain the Balnarring property, the appropriate remedy is the defendant's removal as administrator. He submits that the plaintiff is now estopped from pursuing such relief as the plaintiff sought the defendant's removal by summons filed 8 December 2019 and on 17 December 2019 that summons was dismissed by consent of the parties.

26 The plaintiff disputes the defendant's estoppel submission. He submits that subsequent to the consent orders, he filed a statement of claim that included the removal of the defendant as administrator and that the plaintiff be appointed administrator in place of the defendant. On that basis the plaintiff believes that he is not estopped from seeking such orders.

Orders sought for the filing of affidavit of documents

27 Finally, the plaintiff seeks an order in his summons that the defendant file a further affidavit of documents disclosing, among other things, communications between him and former tenants/occupants of the property, including all leases, notices, and receipts for payment of rental, invoices for veterinary attendances, and invoices for alleged plumbing works and or earthworks carried out to divert flood water.

28 The defendant deposes that he has not entered into any tenancy agreements for the property, and that he occasionally stays at the property, at times with a friend, when attending to maintenance work.

29 The plaintiff deposes that after his visit to the property on 30 November 2021 he had requested the defendant to provide him with the invoices for veterinary care and euthanisation of the sheep, and invoices for alleged plumbing works or earthworks, but that the defendant refused to do so. This request appears to have been based on a conversation held between the neighbour of the property and Ms Dunn, the contents of which are inadmissible.

30 No further submissions were made in relation to this order in either of the plaintiff or defendant's submissions.

31 The defendant's affidavit sets out in detail the actions and work that he has taken in relation to the Balnarring property, including the stock, over the relevant time. Mr Di Benedetto's affidavit sets out his observations of the state of the Balnarring property on 4 January 2022. Their evidence establishes that the defendant is maintaining and preserving the property in a proper manner.

32 The plaintiff's application is, in any event, misconceived as if the defendant was not maintaining and preserving the Balnarring property, the Court would not allow the plaintiff and his mother to reside on the Balnarring property for those purposes. In such circumstances, the appropriate remedy is for the removal of the defendant as the administrator. While the plaintiff included this relief in his statement of claim and amended statement of claim, the issue of whether or not the plaintiff is estopped from seeking that relief is an issue to be dealt with at the trial in the proceeding.

33 The plaintiff's application also fails to take into consideration that the Balnarring property forms part of the trust established by the deceased's will. The principal issue of whether the purpose trust in the will is effective to any extent as a valid charitable trust must be determined before the plaintiff's interest in the Balnarring property can be determined. If the trust is effective to any extent, neither the plaintiff, the defendant nor the deceased's brother will have an interest in the Balnarring property or any proceeds from the sale of the property, until the vesting day defined in the trust arrives or until it is conclusively determined that the trust is not a valid trust.

34 The remaining order sought by the plaintiff is for the filing of an affidavit of documents. The Civil Procedure Act 2010 (Vic) and Supreme Court (General Civil Procedure) Rules 2015 (Vic) provide the Court with broad powers in relation to discovery and they also mandate that an order for discovery should be directed at the most efficient, effective and economical management of the discovery process, bearing in mind the nature and complexity of the trial.[3]

35 The documents sought by the plaintiff are not relevant to any issues in the pleadings. In any event, the defendant has already deposed to any tenancy of the Balnarring property and the request for invoices for veterinary attendances, plumbing work and earthworks for the property is not based on admissible evidence. Accordingly, there is no basis for an order that the defendant file a further affidavit of documents.

36 The Court orders that the plaintiff's summons filed 1 February 2022 be dismissed. If the parties are unable to agree on the costs of the summons, short written submissions are to be filed by 8 July 2022.

[1] Ms Dunn is the mother of both the plaintiff and defendant.

[2] Inadmissible or irrelevant matters in the affidavits relied on by the plaintiff do not form any part in the determination of the issues raised by the plaintiff's summons.

[3] Liesfield v SPI Electricity Pty Ltd & Ors (Ruling No 1) [2013] VSC 634, [25].