Plaintiff v Defendant

2 Since 2022, it has come to the Senior Master's attention that Ms Bevington has not been consistently occupying the property. The Senior Master's inquiries have disclosed that the defendant, Ms Elliott, has for some time been occupying the property, possibly with other occupants. The Senior Master did not give a licence or consent to Ms Elliott to occupy the property. The Senior Master brings an application for summary possession pursuant to Order 53 of the Supreme Court General Civil Procedure Rules 2015 (Vic) (Rules) to recover possession of the property. The questions for determination are:

(a) whether the summary procedure is appropriately used in this case; and

(b) if so, whether judgment for possession should be given.

3 After funds were paid into Court for Ms Bevington's benefit, to be administered by the Senior Master, a property in Fish Creek, Victoria[2] (the Property) was purchased as a residence for Ms Bevington. The Property was initially held on trust by two solicitor trustees. In 2017, r 79.08 of the Rules was introduced, which provided for the Senior Master to require transfer real or other property held on separate account, including a residence for a person under a disability, to be held in the name of the Senior Master. The Senior Master determined that the Property was to be transferred to the Senior Master to hold on trust for Ms Bevington.[3]

4 On 17 August 2017, by order of this Court the solicitor trustees were required to do all things necessary to transfer the Property to the Senior Master. On 8 March 2019, the Senior Master became registered proprietor of the Property.[4]

5 In support of the Senior Master's application under Order 53 of the Rules, an affidavit was filed by Nicole Louise Mitchell, Senior Client Services Officer with Funds in Court. As part of her role, Ms Mitchell is the main point of contact at Funds in Court with Ms Bevington.[5]

6 In June 2022, Ms Mitchell became concerned for Ms Bevington's welfare as her calls had gone unanswered and she was receiving no response to her mail and emails. Ms Bevington's litigation guardian informed Ms Mitchell that Ms Bevington was often moving people into the residence on the Property.[6]

7 Ms Mitchell referred to a report in Ms Bevington's file prepared by Janine Brown, a Client Liaison Officer with Funds in Court, regarding a visit conducted by Ms Brown on 21 June 2022. In her report, Ms Brown stated:

It was immediately clear that the property was not being maintained. The front yard was overgrown with long grass and there were piled of rubbish near the front door and in the open carport. There were two vehicles parked at the property. The one in the carport was a black Subaru Coupe with the registration 1SR-6YL which I confirmed was the vehicle that belonged to Jade and was unregistered. The vehicle had clearly been in an accident and had not been driven in some time. It was covered in bird faeces and dirt and the tyres were flat. There was also another vehicle parked at the property, a black Micra Nissan with the registration XUW 508.[7]

8 Ms Brown's report stated that she knocked at the door of the Property and there was no answer. A neighbour of Ms Bevington stated that she had not seen her in many months.[8]

9 Following Ms Brown's visit, Ms Mitchell contacted the police to conduct a welfare check on Ms Bevington. After attending the Property, the police informed Ms Mitchell that:

(a) they were confident Ms Bevington was not inside;

(b) one of the neighbours reported to the police that they thought Ms Bevington might be in rehabilitation;

(c) they could see on their system that there had been a mental health assessment conducted on Ms Bevington in Cranbourne; and

(d) there were warrants issued for Ms Bevington's arrest.[9]

10 On 23 June 2022, Ms Mitchell made contact with Ms Bevington via telephone. Ms Bevington informed her that she would be returning to the Property soon.[10]

11 Ms Mitchell also referred to file notes on Ms Bevington's Funds in Court file which showed that:

(a) on 29 July 2022, Ms Bevington advised another officer of Funds in Court by telephone that she was 'back at the trust property and would attend to cleaning this weekend';[11] and

(b) on 18 August 2022, Ms Bevington attended the Funds in Court office and advised a client liaison officer that she was spending time between the trust property and her mother's house.[12]

12 On 14 October 2022, Funds in Court received a notice from South Gippsland Shire Council dated 11 October 2022 issued to the Senior Master, stating inter alia that:

(a) Council had received numerous complaints about the unsightly state of the Trust Property;

(b) Local Laws Officers inspected the Trust Property on 11 October 2022;

(c) Clause 11 of the Council's General Local Law 2014 states that '[a]n owner or occupier of land must not allow or permit the land to be kept in a manner which is unsightly or detrimental to the general amenity of the neighbourhood';

(d) the Senior Master was directed to cut all grass, weed and stubble to the satisfaction of Council within fourteen days from the date of the letter;

(e) Council Officers would carry out another inspection after 25 October 2022; and

(f) legal proceedings may be instigated if the notice was not complied with.[13]

13 On or about 2 December 2022, Ms Bevington engaged Matthew Taweel of MT Recoveries to attend to the gardens and to clean the Property. Ms Bevington told Ms Mitchell that Mr Taweel was an old friend of hers.[14]

14 On 5 January 2023, Ms Bevington told Ms Mitchell that Mr Taweel had given the keys to the Trust Property to 'Amy and Rowan'. Ms Bevington said she knew these people but was not friends with either of them. Ms Mitchell called Mr Taweel, and he confirmed to her that he had given the keys to the Property to individuals named Amy and Rowan, who claimed to be family friends with Ms Bevington.[15]

15 On 27 March 2023, Ms Bevington advised Ms Mitchell in a phone call that she believed Mr Taweel was 'dodgy'. She stated that she was residing with her mother in Hastings and not at the Property.[16]

16 On 2 June 2023, Elisa Dwyer, Client Liaison Officer from Funds in Court, attended the Property and wrote a report stating:

It appears that somebody is living in the property but it was vacant today. There were clean dishes on the sink and usual furniture belongings could be seen through windows. There was a half used carton of milk on the kitchen bench with a use by date of 1 June 2023 (visit date was 2 June). Outside there was a pram, dismantled cot and a child's car seat on a trailer containing rubbish. When I last went to the property the front door was unlocked and in poor condition. On this occasion I noted the doors were locked and the front door has been replaced with a more solid door and the removed door was on pile of half burnt rubbish in the backyard. It appears that somebody has made an attempt to mow lawns, poison weeds and removed large bushes at the front of the property. Two garden beds at the front of the property have been cleared and planted with flowers/shrubs and decorated with ornaments.[17]

17 On 26 June 2023, Ms Mitchell recommended to the Judicial Registrar at Funds in Court that the Property be sold, given the difficulties staff were having in contacting Ms Bevington and the belief that she was not residing at the Property. The Judicial Registrar directed that a meeting with Ms Bevington be held prior to proceeding with the sale and that a client liaison officer attend the property to obtain an update on its condition.[18]

18 On 31 August 2023, Ms Dwyer again attended the Property and prepared a report stating:

I attended the trust property but no one was home. As can be seen from the photographs (below) the garden hasn't been attended to and it appears the lawns haven't been mowed since the last visit in June. There was little other change to the property other than the gates not been secured, the tarpaulin at the front of the garage being firmly fixed so entry wasn't possible. There was also a caravan in the driveway; it is old and possibly not roadworthy.[19]

19 On or about 7 September 2023, Ms Mitchell spoke to Ms Bevington. She stated that she would return to the Property 'soon'. She claimed she did not know who was residing at the Property.[20]

20 On 21 September 2023, a notice to vacate was served at the Property.[21]

21 On 23 October 2023, Ms Dwyer again attended the Property and wrote a report stating:

I attended the property. There was no response from a knock on the door. As it was clear nobody was at the property, I accessed the yard and walked around the outside of the house as both side gates have been removed (they were closed when I last went to the property on 1 September 2023. During previous visits the interior could be viewed through net curtains on the lounge and kitchen windows, whilst all other windows had regular curtains which have always been closed. On this occasion I noted that regular curtains have now been installed on the lounge and kitchen windows so it is now not possible to view the interior of the property from any window. The rubbish bins were empty and sitting at the front of the property. Access to the garage continues to be blocked. It is assumed it continues to contain two cars and other furniture/paraphernalia, as noted previously.[22]

22 On 2 November 2023, Ms Mitchell arranged for a locksmith to attend the Property to change the locks. The locksmith advised Ms Mitchell that no one answered the door when he knocked and after picking the lock, a female yelled out from another room. As someone was present in the Property, the locksmith was unable to change the locks.[23]

23 On 17 November 2023, Ms Mitchell spoke to Ms Bevington by telephone. Ms Bevington advised Ms Mitchell that the name of the person occupying the Property was Amy Elliott. Ms Bevington said that she had asked Ms Elliott to leave the Property 'about 12 months ago' and confirmed she knew Ms Elliott from living in the same town. Ms Bevington told Ms Mitchell she was fearful of Ms Elliott due to previous acts or attempted acts of violence towards her.[24]

24 On 12 December 2023 a second notice to vacate was served on Ms Elliott at the Property.[25]

25 On 26 April 2024, an officer of Funds in Court attended the Property and viewed it from the road. She observed that the Property appeared inhabited, though she did not observe an occupant directly. She observed that the outside lights were on and there were cars parked on the Property.[26]

26 As at the date of her affidavit affirmed on 6 May 2024, Ms Mitchell's belief was that:

a. Jade is not in occupation of the Trust Property;

b. the Defendant is in occupation of the Trust Property; and

1. despite service of the September Notice and the December Notice, the Defendant has not vacated the Trust Property, and she remains in occupation of the residence thereon.[27]

27 Mark Eaton, solicitor for the plaintiff, gave evidence that the Senior Master is unable to obtain insurance for the Property while it is occupied without consent by Ms Elliott and any other occupiers, and that the Property has been uninsured in respect of building, contents and public liability since 4 April 2024.[28]

The application for summary recovery of the Property

28 The Senior Master seeks recovery of the Property by originating motion filed on 21 May 2024, in accordance with r 53.02 of the Rules. The Originating Motion is directed to Ms Elliott as the defendant, and to 'EVERY PERSON IN OCCUPATION OF THE LAND' at the Property. On 29 May 2024, the Originating Motion and Ms Mitchell's affidavit in support were served by a process server on a person he believed to be Ms Elliott at the Property. These documents were also served on the occupiers by placing the documents in a sealed envelope addressed to 'The Occupiers' and attaching the envelope to the front door of the Property.[29]

29 On 18 June 2024, a directions hearing was held before a Judicial Registrar at which no appearance was made by or on behalf of the defendant or any occupiers. On 19 June 2024, Ierodiaconou AsJ referred the matter to me for hearing.[30] This was on the basis that while the usual practice is for applications under O.53 to be heard by an Associate Justice, the circumstances of this case are unusual given the application is brought by the Senior Master, a judicial officer of this Court. It was proposed by the plaintiff that the proceeding be allocated to a justice of the trial division, and that this be done on an urgent basis given that the Property was uninsured and insurance could not be obtained for the Property while it is occupied by Ms Elliott and other occupiers.[31]

30 On 19 June 2024, I directed that the Senior Master provide a copy of an email from my associate giving instructions as to the time and location of the hearing today to Ms Elliott. A copy of the email was left in a conspicuous place inside the entrance to the Property on the evening before the hearing.[32] At the hearing of the application on 20 June 2024, no appearance was made by the defendant or any occupiers. I had my associate call the matter out of Court and no person appeared.[33]

31 Rule 53.01 of the Rules provides for the application of O.53:

(1) Subject to paragraph (2), this Order applies where the plaintiff claims the recovery of land which is occupied solely by a person or persons who entered into occupation or, having been a licensee or licensees, remained in occupation without the plaintiff's licence or consent or that of any predecessor in title of the plaintiff.

(2) This Order does not apply where the land is occupied by a mortgagor or successor in title and the claim is made by the mortgagee or successor in title.

32 Order 53.02 authorises, in cases of the kind identified in r 53.01(1), the use of a summary procedure involving commencement of the application by originating motion rather than writ. Rule 53.04 provides that when commencing a proceeding an affidavit must be filed stating:

(a) the interest of the plaintiff in the land;

(b) the circumstances in which the land has been occupied without licence or consent and in which the claim for recovery of the land arises; and

(c) that the plaintiff does not know the name of any person occupying the land who is not a defendant.

33 Rule 45.04(3) provides that the plaintiff in an application under O.53 may apply for judgment on the same day as the date specified in the originating motion.

34 In Framlingham Aboriginal Trust v McGuiness and Chatfield Derham AsJ referred to the history of the O.53 procedure in a way which demonstrates why it is an apt procedure for an application of the present kind:[34]

Order 53 creates a special procedure for the summary recovery of land in certain restricted circumstances. The order is based upon what was Order 113 in the English High Court Rules introduced in 1970. The background to the introduction of that order of the English Rules, and thus Order 53 of our Rules, was explained by Lord Denning MR in McPhail v Persons Unknown, in the following terms:

... When some squatters entered on vacant land belonging to the Manchester Corporation, this court granted an injunction against them, but held that it could not make an order for recovery of possession except in a final judgment: ...

... And when some squatters occupied houses in Brighton, Stamp J. held that no proceedings could be taken for recovery of possession unless they were named as defendants: see In Re Wykeham Terrace, Brighton, Sussex, Ex parte Territorial Auxiliary and Volunteer Reserve Association for the South East [1971] Ch 204. The result was that if the squatters did not give their names, or if one squatter followed another in quick succession, no order for possession could be made. I must confess that I doubt the correctness of that decision. But it does not matter. The position was soon put right by new rules of court. R.S.C., Ord. 113, of the High Court and Ord. 26 in the county court are quite clear. A summons can be issued for possession against squatters even though they cannot be identified by name and even though, as one squatter goes, another comes in. Judgment can be obtained summarily. It is an order that the plaintiffs "do recover" possession. That order can be enforced by a writ of possession immediately ...

35 In Framlingham his Honour also summarised, at [41], the principles applicable to an application under O.53, in a passage which has been cited with approval by Tate JA in the Court of Appeal:[35]

The authorities establish the following matters in relation to the operation of Order 53:

(a) It is intended to enable a speedy resolution in favour of the proprietor of land of a dispute whereby trespassers are keeping the proprietor out;[36]

(b) It is intended to apply only in clear cases where there is no question to try;[37]

(c) The existence of a factual dispute does not deny the applicability of Order 53 where it is possible to resolve the dispute readily and fairly.[38]

(d) While an order for possession may be made notwithstanding that there is a factual dispute between the parties, such an order will only be appropriate if the court is able to satisfy itself as to the material facts that bring the case within Order 53;[39]

(e) The jurisdiction should be exercised with great care;[40]

(f) Where an issue does emerge, the judge has discretion whether simply to dismiss the proceeding, to determine the issue or cause the issue to be subsequently tried. This includes giving directions as to the further conduct of the proceeding or ordering the proceeding to continue as if begun by writ pursuant to r 4.07 of the Rules;[41] and

(g) Where the court gives judgment for possession under Order 53, it may grant a stay of execution.[42]

36 Rule 53.01(1) provides that O.53 applies where the plaintiff claims recovery of land which is occupied by a person or persons who:

(a) was or were not given a licence or consent to occupy the property; or

(b) if previously given a licence, remained in occupation without the plaintiff's licence or consent.

37 The evidence in support of the claim in this case establishes on a prima facie basis that the property is occupied by Ms Elliott and potentially other unknown persons, and that the Senior Master as plaintiff and owner of the land has not given those persons licence or consent to occupy the Property.

38 The affidavit of Ms Mitchell filed in this proceeding satisfies the formal requirements of r 53.04,[43] and the Originating Motion and supporting affidavit have been served on Ms Mitchell and on the occupiers of the Property as required by r 53.05(2) and (3).

39 There remains a question whether, having regard to the basis of the application and the nature of the facts put forward to support the plaintiff's claim, the O.53 summary procedure is appropriate. In Chan v Chan the Court of Appeal discussed the limited circumstances in which the summary procedure in O.53 should be used. The Court considered authorities in which the summary procedure was regarded as inappropriate in the circumstances of any significant disputed issues of fact, or complex issues of law.[44] The Court of Appeal also acknowledged cases in which an order for summary possession has been made in a contested case, even though confined factual disputes may need to be resolved.[45]

40 In the present case, the application is uncontested, as the defendant has not appeared, despite having been served with the originating motion and supporting affidavit. The evidence is fairly straightforward and, with the exception of one legal issue to which I refer below, which does not need to be comprehensively resolved for the purposes of this application, the application does not raise complex legal issues. It is a fairly straightforward case of unauthorised occupation of the kind for which the summary procedure was established. Although the evidence gives rise to some minor factual issues to be resolved, they are not in my view such as to make the use of the summary procedure inappropriate. I have therefore proceeded to hear and determine the matter using the summary procedure.

41 The Property is owned and held on trust by, and registered in the name of, the Senior Master.[46] The Property was acquired for, and is held by the Senior Master for, the purpose of use by Ms Bevington as a residence.[47]

42 Rule 53.01(1) provides that the O.53 procedure applies where the plaintiff claims the recovery of land occupied by a person or persons who entered without licence or consent or if having been a licensee or licensees, remain in occupation without the plaintiff's licence.

43 The evidence is clear that the Senior Master is registered proprietor and holder of the legal title to the Property, and that the Senior Master has never given a licence or consent to Ms Elliott, or any unknown person, to occupy the Property. I am satisfied therefore that the Senior Master as plaintiff is entitled pursuant to O.53 to claim the recovery of the Property from the defendant and any unnamed persons currently occupying the Property.

The status of any consent to occupy the Property given to third parties by Ms Bevington

44 Some of the evidence raised a possibility that there was some consent given by Ms Bevington for other people to reside in the Property for periods of time including, indirectly, a possibility that she consented or acquiesced to Ms Elliott residing in the Property.[48] This raises a question as to the status of any consent given by Ms Bevington, who is entitled to reside in the Property, to Ms Elliott or any other person to occupy the Property.

45 Ms Bevington's entitlement to occupy the Property arises from the terms of the Declaration of Trust, which identifies the Property as the Trust Property and provides, relevantly by way of background:

3.3 Application has been made by the Beneficiary to purchase the Trust Property as a residence for the Beneficiary.

3.4 By order of the Court made on 18 April 2016, a deposit in the sum of $31,400.00 was paid to the solicitors for the vendor of the Trust Property; the purchase price of the Trust Property being $314,000.00.

3.5 The Trustees have agreed to hold the Trust Property upon trust for the Beneficiary subject to the provisions of this Deed.

46 Clause 4.1 of the Declaration of Trust provides:

The Trustees will hold the Trust Property upon trust for the Beneficiary, as a residence for the Beneficiary, or as otherwise approved by the Senior Master.

47 The Declaration of Trust does not otherwise touch upon the terms of Ms Bevington's entitlements with respect to the property. There was no evidence that the Senior Master had 'otherwise approved' any use of the Property within the meaning of cl 4.1.

48 The Senior Master as the legal owner of the Property is entitled to deal with the Property subject to the terms of the Trust. The terms of the Trust provide that the Property is available to Ms Bevington as beneficiary 'as a residence'. Ms Bevington's right to use the Property as a residence[49] would entail some entitlements to invite persons on to the Property. The scope of those entitlements and whether it would extend beyond having guests on the property to permitting others to reside in it with her are not entirely clear. In the limited time available I have been unable to identify any authority directly relevant to the issue. It is further complicated by the fact that Ms Bevington is a person under a disability.[50] However it is clear that Ms Bevington's rights would not extend to permitting other people to reside in the Property in Ms Bevington's absence, as this would not constitute use of the Property 'as a residence' by Ms Bevington as beneficiary within the terms of the Trust. The evidence is clear that Ms Bevington is not residing at the Property with Ms Elliott and any other occupier of the Property. This is a sufficient basis on which to conclude that the occupiers are not occupying the Property with any licence or consent which could be enforceable against the Senior Master as Trustee.

49 Further, the evidence as to any consent or acquiescence Ms Bevington for others to reside in the Property is insufficiently clear to conclude that she has in fact consented to any person residing there without her. The evidence is, however, clear that Ms Bevington had revoked any kind of consent which may have been granted. The evidence of Ms Mitchell was that Ms Bevington had told her in November 2023 that she had asked Ms Elliott to leave the Property 'about 12 months ago'.[51] I accepted that this and other hearsay evidence as to Ms Bevington's communications in the affidavits was admissible as pursuant to s 64 of the Evidence Act 2008 (Vic) on the basis that the affidavit evidence established the difficulty of contacting Ms Bevington and arranging for her to give evidence. It would have caused undue expense and delay, and would not have been reasonably practicable to call Ms Bevington to give the evidence of her request to Ms Elliott to leave the Property.[52]

50 To the extent that Ms Bevington could give any licence or consent to third parties occupy the property, and did so at any point in time (which remains only an uncertain possibility on the evidence), it is clear from the evidence that any such licence or consent has been revoked.

51 Further, the notice to vacate given to the occupants of the Property on 19 September 2023 gave clear notice that 'any purported licence or consent that you may have had to reside in the property is hereby terminated'.[53] The notice to vacate issued on 5 December 2023 to Ms Elliott stated that 'the Senior Master has said you are not allowed to live in the property' and 'that you must leave the property'.[54] The Senior Master as legal owner and registered proprietor was entitled to serve those Notices.

52 In these circumstances, I accept that Ms Elliott and any other persons currently occupying the Property are in occupation of the Property without licence or consent. I will give judgment that the Senior Master recover possession of the Property.

53 The Senior Master sought an order that Ms Elliott pay her costs of and incidental to the O.53 application. It was submitted that the costs incurred by the Senior Master arose due to the unreasonable conduct of Ms Elliott, who has remained in possession of the Property with no entitlement to do so. It was also submitted that 'despite numerous attempts to have the defendant vacate the property without recourse to the Court, such attempts have failed, necessitating the present application'.[55]

54 That costs are sought in the application was not raised until the provision of the Senior Master's written submissions and proposed orders on 19 June 2024. An application for a costs order was not referred to in the originating motion served on Ms Elliott and the occupiers in May 2024. It was accepted by counsel for the Senior Master during the hearing that nothing would have brought the issue of costs to the attention of Ms Elliott prior to the hearing.[56]

55 It is entirely understandable that the Senior Master as Trustee would seek the costs of the application. However, in circumstances where Ms Elliott has not been put on notice that a costs order is sought against her, and the hearing proceeded in her absence, I will not order that she pay the Senior Master's costs in the application.

[1] Affidavit of Nicole Louise Mitchell affirmed 6 May 2024 (Mitchell Affidavit), [6]-[7].

[2] Described in Certificate of Title Volume 09349 Folio 508.

[3] Mitchell Affidavit, [7]; Exhibit NLM-1, 2.

[4] Mitchell Affidavit, [7(g)]-[7(h)]; Order of Efthim AsJ dated 17 August 2018.

[13] Mitchell Affidavit, [15]; Exhibit NLM-1, 3-4.

[21] Mitchell Affidavit, [24]; Exhibit NLM-1, 5-7 (Affidavit of Service of David Keen sworn 4 October 2023).

[25] Mitchell Affidavit, [29]; Exhibit NLM-1, 8-10 (Affidavit of Service of David Keen sworn 18 December 2023).

[28] Affidavit of Mark Daniel Eaton dated 14 June 2024, [3]-[4].

[29] Two affidavits of service of David Keen sworn 12 June 2024. The affidavit relating to service on the occupiers included evidence that there is no letterbox at the Property so that it was 'not practicable' within the meaning of r 53.05(3)(a)(ii) of the Rules to leave the originating motion and affidavit in a letterbox. The documents were instead affixed to the front door.

[30] Order of Ierodiaconou J made 19 June 2024, order 1.

[31] Affidavit of Mark Daniel Eaton dated 14 June 2024, [2]-[4].

[32] Affidavit of Mark Eaton affirmed 20 June 2024, [5]; Exhibit MDE-1.

[34] Framlingham Aboriginal Trust v McGuiness and Chatfield [2014] VSC 241, [38] (footnotes omitted).

[35] Chan v Chan [2020] VSCA 40, [55]; See also Tajon v Arvanitis [2017] VSC 130, [34] (Derham AsJ) and Mercedes Mortgage Management Pty Ltd v Yi [2020] VSC 657, [11] where Derham AsJ's summary was referred to with approval by Matthews JR (as her Honour Justice Matthews then was).

[36] Pappas v Bowmark Pty Ltd [1998] VSCA 120, [13].

[37] Palazzo v Pullen (unreported, Supreme Court of Victoria, Brooking J, 24 July 1992).

[38] Pappas v Bowmark Pty Ltd [1998] VSCA 120, [13]; Melbourne Anglican Trust Corporation v Greentree (Unreported, Supreme Court of Victoria, Vincent J, 29 May 1997); Tolhurst Druce & Emerson v Maryvell Investments Pty Ltd [2007] VSC 271, [193]-[195]; Byrne v Ritchie [2009] VSC 114, [17] (Kyrou J).

[39] Byrne v Ritchie [2009] VSC 114, [17] (Kyrou J).

[40] Melbourne Anglican Trust Corporation v Greentree (Unreported, Supreme Court of Victoria, Vincent J, 29 May 1997); Max Moar & Queenbridge Pty Ltd v Shazia Duman [2007] VSC 266, [2].

[41] Palazzo v Pullen (unreported, Supreme Court of Victoria, Brooking J, 24 July 1992).

[42] Parker v Mielicki [2003] VSC 263 and r 66.16 of the Rules.

[43] Mitchell Affidavit, [7], [33]-[34].

[44] Chan v Chan [2020] VSCA 40, [56]-[65] (Tate JA, Maxwell P and Forrest JA agreeing).

[45] Chan v Chan [2020] VSCA 40, [66]-[70] (Tate JA, Maxwell P and Forrest JA agreeing).

[46] Mitchell Affidavit [7(h)]; Exhibit NLM-1, 2 (Certificate of Title showing the Senior Master as registered proprietor of the Property).

[47] See Order of Efthim AsJ dated 17 August 2018, in Other Matters, and the Declaration of Trust referred to in that Order which was produced to the Court and marked MFI-1.

[48] Mitchell Affidavit, [9], [17], as to Ms Bevington 'moving' people into the property, and the circumstances in which keys to the Property were given, through Ms Bevington's acquaintance Matthew Taweel, to 'Amy and Rowan'.

[49] Which is a right enforceable as against the Senior Master as Trustee; see for example DKLR Holding Co (No 2) v Commissioner of Stamp Duties [1980] 1 NSWLR 510, 519 [16] (Hope JA); Re Transphere Pty Ltd (1986) 5 NSWLR 309, 311 (McLelland J). It is a more complex question what rights are created on the part of the beneficiary to deal with it vis-à-vis third parties, particularly in circumstances where cl 4.1 reserves the ability of the Senior Master to 'otherwise approve' the use for which the Property is held.

[50] It was submitted for the Senior Master that Ms Bevington would not have been in a position as a person under a disability to give any consent (Transcript 20/06/24, T5.25-.30) but the evidence did not address that issue and I did not need to determine it.

[52] No notice was given of the intention to adduce the evidence in the form required by s 67 of the Evidence Act. Counsel sought at the hearing to adduce the evidence pursuant to the first-hand hearsay exception in s 64(2) (Transcript 20/06/24, T9.08-.13) and I determined it appropriate to direct that s 64(2) applies to the evidence of what Ms Elliott told Ms Mitchell despite the failure to give notice in circumstances where the evidence had been contained in Ms Mitchell's affidavit in support of the Originating Motion, which was served on the defendant on 29 May 2024.

[53] Mitchell Affidavit, Exhibit NLM-1, 5 (Notice to Vacate dated 19 September 2023).

[54] Mitchell Affidavit, Exhibit NLM-1, 8 (Notice to Vacate dated 5 December 2023).

[55] Plaintiff's submissions dated 17 June 2024, [14]-[15].