Vallance v Laird & Ors [2025] VSC 476

2 The plaintiff is the administrator of the estate of Ellen Laird, who passed away in December 2020.

3 The deceased was survived by seven children, including the fifth defendant.

4 The only substantial asset in the estate is a farm property known as Harkaway Farm.

5 Over time there seem to have been several estimates made of the value of Harkaway Farm as well as the price that might be obtained upon a sale.

6 An inventory apparently dated in August 2023 records an estimated value of Harkaway Farm of $5.2 million.

7 However, there have been several higher estimates; as well as a valuation and an estimated range that extends lower than that figure.

8 In that regard, I note that the underlying originating motion states that, as at 10 September 2021, the estate comprised -

(a) Harkaway Farm, valued at $5 million;

(b) personal estate, valued at $247,738.03; and

(c) liabilities of $325,516.02.

9 In argument, it was said that the liabilities of the estate have since accumulated and, in September 2024, were $1.4 million.

10 Part of that accumulation seems to have related to a history of litigation broadly relating to Ms Laird, her estate, a claimed constructive trust, Harkaway Farm and claims in respect of family provision. The plaintiff deposes to aspects of that history in an affidavit filed on 19 September 2024.

11 Parts of the edifice of litigation remain on foot. In particular, the fifth defendant claims an equitable lien and, separately, the plaintiff brings this application by summons.

12 On 5 September 2024, the plaintiff commenced the present proceeding by the originating motion to which I have earlier referred.

13 By that originating motion, the plaintiff sought orders that he have the conduct of the sale of Harkaway Farm as well as directions in respect of the process by which Harkaway Farm might be sold.

14 The matter came before Moore J on 27 February 2025. His Honour made various orders and gave associated directions by consent.

15 In particular, his Honour ordered that Harkaway Farm be sold and that the plaintiff have conduct of the sale.

16 The directions concerned the process of sale. The present dispute concerns directions 6(c), 6(d) and 6(g).

17 It is presently unnecessary for me to recite the whole of the directions made by consent. However, I should note that -

(a) the plaintiff was directed to appoint JACX Property on certain terms as transaction manager;

(b) the plaintiff was directed to appoint First National on certain terms as selling agent;

(c) by direction 6(c), in substance, Harkaway Farm was to be sold by expression of interest campaign or such other method as the plaintiff shall determine in his absolute discretion after taking advice;

(d) by direction 6(d), in substance, the plaintiff was directed to use his best endeavours to maximise the sale price of Harkaway Farm and, in doing so, seek and rely on the advice of JACX Property and First National;

(e) by direction 6(g), the 'net proceeds of sale including any deposit' shall be paid into the trust account of the plaintiff's solicitor and there held on the plaintiff's behalf as administrator; and

(f) to the extent that it may be necessary, each of the defendants, including the fifth defendant, is directed to join in and sign all documents and do all things as may be necessary to give effect to the sale and conveyance.

18 By summons dated 25 July 2025, the plaintiff seeks judicial advice that -

(a) the plaintiff has complied with directions 6(c) and 6(d); and

(b) direction 6(g) does not prevent the plaintiff from paying the proper expenses of the estate and the plaintiff's costs and disbursements of administering the estate out of the net proceeds of sale.

19 The advice is sought pursuant to the Supreme Court (General Civil Procedure) Rules directed to the determination of questions arising in the administration of an estate, particularly r 54.02(2)(a)(i).[1]

20 In that connection, the plaintiff has filed a further affidavit dated 22 July 2025.

21 Parts of the further affidavit refer to matters the subject of a contractual obligation of confidence.

22 The plaintiff also relies upon written submissions dated 25 July 2025.

23 The plaintiff's application was initially proposed to be heard in the Practice Court and ex parte, but the defendants came to be placed on notice and were seemingly served with the summons, a redacted version of the plaintiff's further affidavit, the plaintiff's written submissions and the orders sought.

24 The fifth defendant filed an affidavit and written submissions each dated 1 August 2025.

25 I have read the material to which I have referred.

26 The plaintiff contends that there is urgency, as he has entered into a contract with a buyer that is conditional. In particular, a cooling off period expires tomorrow.

27 Argument in respect of the plaintiff's summons was heard yesterday.

28 Mr Aghion KC appeared with Mr Reynolds of counsel for the plaintiff.

29 Mr Zanier, solicitor, appeared on behalf of the first defendant and stated that he advanced no submissions against the application.

30 Ms Mantzanidis, solicitor, appeared on behalf of the fifth defendant. Notwithstanding the redactions to which I have referred, and the suggestion in the fifth defendant's written submissions that he would need to be advised of the contracted price in order that he might 'fully be able to be heard', that contention was not developed orally and, in the result, Ms Mantzanidis seems to have had no difficulty in advancing the essential substance of her client's contentions.

31 In that general connection, Mr Aghion described the orders sought as 'quite limited'[2] and addressed the submissions of the fifth defendant which, he said, put the plaintiff in a 'very difficult position'.[3]

32 In particular, Mr Aghion submitted as follows -

... first of all he [the fifth defendant] asserts that the application is unnecessary. Second, he complains generally about various aspects of the sale process, but thirdly and critically, he does not deal with the merits of the application made today. That is to say, he does not assert that the plaintiff has failed to comply with order 6(d). For example, by failing to take advice from JACX Property or from First National.[4]

33 Mr Aghion also explained various aspects of the background circumstances referred to in his client's first affidavit.

(a) as to direction 6(c), Mr Aghion submitted that the plaintiff had complied by adopting a specified method of sale and taking the advice of JACX Property and First National;

(b) as to direction 6(d), Mr Aghion submitted that his client's compliance was set out in detail in the further affidavit, including that he had taken advice from JACX Property and First National, and that he had extracted the price and terms following what was described in argument as having been 'a rather arduous negotiation process';[5]

(c) as to direction 6(g), Mr Aghion explained that, essentially defensively, the plaintiff seeks confirmation that the direction does not prevent him from paying out of the proceeds of sale the proper expenses of the estate and including the plaintiff's costs and disbursements incurred as administrator. That is, the plaintiff seeks confirmation that the terms of direction 6(g) would not prevent such payments being made because all such proceeds must only be held on trust. In the course of advancing that submission, Mr Aghion confirmed that the plaintiff does not seek advance approval of the quantum of any such claims, and that the confirmation sought should also not preclude the fifth defendant from making an application for account and otherwise scrutinising and challenging the sums sought to be so applied.

35 In commendably focussed submissions in response, Ms Mantzanidis took issue with the suggestion that her client is 'litigious'.

36 More particularly, Ms Mantzanidis referred to the contents of letters sent by the fifth defendant's solicitors on 19 May 2025 and 23 May 2025. The latter, in particular, was said to have raised many concerns of the fifth defendant, including a long history involving what was described as 'the potential purchaser', a potential conflict of interest relating to First National and what was described as 'a table of potential prices' postulated in respect of Harkaway Farm.[6]

37 In that general context, Ms Mantzanidis described her client as simply trying to preserve the asset of the estate, of which he was said to be a 'primary beneficiary' and also to have on foot a proceeding in which he claims an equitable lien.

38 As to direction 6(g), Ms Mantzanidis said that it was not the appropriate time for costs to be sought as a whole and later clarified that what her client was concerned about was any 'blanket allowance for costs of the entire estate'.[7]

39 When it was explained that the confirmation sought by the plaintiff would not affect the ordinary manner in which the payment of such costs and disbursements might be scrutinised and challenged, Ms Mantzanidis said that her client did not take any issue and later said that that the terms, as clarified, were 'fine'.[8]

40 As will be evident, at least until it was clarified in argument, there seem to have been the seeds of a dispute over the potential effect of direction 6(g) that may well have led to a later embrace of the proposition that has concerned the plaintiff.

41 To be clear about the matter, I do not consider that the terms of direction 6(g) may reasonably be read to mean that the administrator could not pay the properly incurred expenses of the estate, including in respect of a sale of Harkaway Farm, out of funds placed into the solicitor's trust account. Significantly more direct language would be required before such a radical result could be accepted.

42 In the circumstances, in respect of direction 6(g), it seems to me that it is sufficient for me to confirm its effect in the uncontentious terms ultimately proffered in argument and accepted by Ms Mantzanidis. That is, direction 6(g) does not fetter the usual rights and duties of the plaintiff, as administrator, in respect of the payment of the costs and expenses of the estate; nor, as explained, does it justify the plaintiff paying to himself the whole of his or any other costs and disbursements in a manner that would be beyond scrutiny and any proper challenge by the fifth defendant.

43 That brings me to directions 6(c) and (d), which are related.

44 In that regard, I accept that the further affidavit of the plaintiff demonstrates him to have determined to sell Harkaway Farm via an expression of interest campaign and upon the advice of JACX Property and First National. In that regard, it seems to me to be plain, on the evidence, that the plaintiff has complied with direction 6(c).

45 The dispute presently raised by the fifth defendant arises more directly with reference to direction 6(d); that is, particularly, whether the plaintiff has used his 'best endeavours to maximise the sale price' and, in so doing, relied on the advice of JACX Property and First National in determining the terms of sale, particularly in respect of price.

46 Although it is presently unnecessary to determine whether the fifth defendant is accurately to be described as 'litigious', it is plainly necessary to determine the present question. That is so because, as Mr Aghion noted, the solicitor's letter of 23 May 2025 directly threatens the plaintiff with the risk of litigation.

47 It is evident from the plaintiff's further affidavit that the fifth defendant's threat of litigation followed a relatively lengthy period in which the fifth defendant seems to have closely followed and to some extent contributed to the presentation of Harkaway Farm for sale via expression of interest.

48 What seems to have precipitated the belated threat, however, is the provision to the fifth defendant, by letter dated 19 May 2025, of the report of JACX dated 15 May 2025 and the report of First National dated 16 May 2025. The former, in particular, extracts the essential terms of what was there described as being the 'sole offer' from a Mr Delaney, and the latter recommended making a counteroffer to Mr Delaney of $5.5 million.

49 In that context, the letter of 23 May 2025 stands as the centrepiece of the fifth defendant's various complaints. Among other things, it is there said that -

(a) there is no imperative that should compel the plaintiff to accept an 'unfavourable offer';

(b) a counteroffer of $5.5 million would be well below the advertised price range, lower than the price per acre obtained in a sale of a vacant part of the farm referred to as 'Lot 3' in 2016 (after a lower offer had earlier been made by the same Mr Delaney), lower than estimates by what was described as 'five of the six selling agents' (in about August 2023) and lower than other rural property sales in the district;

(c) in that regard, the fifth defendant has formed his own view that a fair market value of the property is 'certainly not less than the upper price point of $8M' quoted by one agent in about August 2023, namely Peake Real Estate;[9]

(d) there was a 'potential conflict of interest' owing to a relationship between First National and Mr Delaney - indeed, it was said that Mr Delaney had utilised that relationship to exert leverage over First National during the sale of Lot 3 in 2016;

(e) the marketing campaign for Harkaway Farm was 'underwhelming' and had 'deficiencies';

(f) the sales strategy for Harkaway Farm should be 're-set';

(g) in particular, the selling agent should be changed to Peake Real Estate or a 'city-based agency with a national or multinational reach';

(h) the sales environment may be more conducive later this year;

(i) in failing to take certain steps in respect of subdivision, the plaintiff had, among other things, failed in his duty to preserve the value of the property; and

(j) if the Court were to accept the fifth defendant's equitable lien claim 'in full', that claim may exceed the assets of the estate if Harkaway Farm were sold for $5.5 million.

50 The effect of all of the above might be thought to have sought - perhaps by force of combined elements of argument - to displace the effect of the orders to which the plaintiff had earlier consented.

51 In that regard, if there was really any substance in the fifth defendant's various claims relating to a failure to pursue subdivision, a conflict of interest involving First National which stretches back to 2016, the sales environment in early 2025 and a conceivable prospect that there might be a sale for a figure less than $8 million, it is hard to imagine that the plaintiff could ever have consented to the form of orders and directions made on 27 February 2025. In the circumstances, I do not consider the belated raising of those complaints now to suggest that they have any real substance.

52 Similarly, the fifth defendant's complaints about sales strategy and marketing and, for that matter, Mr Delaney, do not seem to have emerged until after it was evident that Mr Delaney had made an offer and First National had proposed a counteroffer of $5.5 million.

53 Again, I do not consider those complaints to be likely to carry any real substance and, more broadly, all of the points to which I have referred seem to be peripheral to the fifth defendant's core concern, which is Mr Delaney's offer, and the proposed counteroffer, and therefore the price which might presently be obtained upon a sale of Harkaway Farm.

54 In that regard, as I have noted, even though the plaintiff referred to the advertised price range and earlier estimations of other agents, it is apparent that he favours his own view that the property should not be sold for less than $8 million, which is, perhaps, supported by the very top of one of those estimations made by Peake Real Estate in 2023, together with what is said to be his own investigation concerning rural sales in the area. Combined with his statements concerning events involving Mr Delaney and Lot 3 in 2016, it is said, it seems, that a sale of Harkaway Farm should now be deferred, the strategy 're-set' and sale by auction contemplated, and perhaps undertaken, in order that a sum of not less than $8 million might be obtained.

55 Much of the above, of course, concerns no more than advertising and estimation, much of the latter of which was at a considerably earlier time and, I expect, expressed in a context in which the agents concerned were pitching to be retained.

56 It is not obvious that any of that could have taken into account the fact that the process of expressions of interest undertaken nearly two years later, in the early part of 2025, elicited a combination of concerns, including about the residence on the property together with the associated landscaping, and ultimately elicited only one offer by way of written contract after an extensive process of marketing and negotiation.

57 Further, as I have earlier indicated, other advertising, estimations and valuations seem to have been lower than the fifth defendant's favoured estimation of $8 million. Indeed, all but one is lower than that figure and none seem to have been greater than it.

58 I do not regard any of the above as displaced by the fifth defendant's account of his investigations concerning local sales or his speculation about the riches to be obtained at auction. It is apparent from the material that JACX Property has considered the substance of those and other claims and essentially advised that they can find no record of any transaction in the area within the past three years which exceeds $4.75 million. JACX Property has also essentially advised against now proceeding to a process of later auction or extending the timeline for expressions of interest. The reasons expressed in support of that view seem to me to be quite reasonable, and to carry considerable force.

59 Against that, of course, the fifth defendant refers to events in 2016, which were nearly 10 years ago, seemingly concerned with a sale of vacant land - rather than land and a residence about which concerns seem to have been expressed - and all of which very likely took place in a somewhat different financial climate, particularly in respect of interest rates.

60 None of that, in my view, renders the fifth defendant's present urgings in respect of a deferral of the sale process and 're-set' of the strategy as supportive of any more than speculation of the broadest kind to the effect that any such steps might later be productive of a higher sale price for Harkaway Farm. Such a speculative foundation must also, it seems to me, admit of the possibility that deferral and a later process of sale might, in fact, ultimately prove to be materially any different to, and even less favourable than, that which has presently been secured. In the meantime, of course, costs would continue to mount and, consequently, erode the value of the estate.

61 Further, the substance of the advice apparently received by the plaintiff is essentially against any such deferral.

62 Finally, the fifth defendant refers to a need for the plaintiff to take account of his status as primary beneficiary as well as his claim to an equitable lien. That proceeding, of course, remains on foot, and undetermined, and the fifth defendant's assertions about it seem to contemplate a value expressed only in the entirety of that which he seems to claim.

63 In any event, the fifth defendant's status as beneficiary and his pursuit of a claim in respect of any equitable lien do not, of themselves, stand to displace the reality of the circumstances presently facing the plaintiff which, I might say, are far from unusual when it comes to the sale of property or, for that matter, the settling of litigation.

64 In that overall context, the essential answer to the plaintiff's various complaints seems to me to be, as was emphasised in argument by Mr Aghion, that none of it serves to demonstrate that the plaintiff has not used his best endeavours to maximise the sale price of Harkaway Farm via the mechanism directly contemplated in the orders made by consent on 27 February 2025, and which he had an absolute discretion to adopt.

65 Further, in pursuing that mechanism, it is not at all apparent that the plaintiff has failed to obtain and thereafter rely upon the advice of JACX Property and First National - rather, on the evidence, the position seems to be very much to the contrary.

66 In my view, to be perfectly clear about the matter, it is plain on the evidence adduced in the plaintiff's further affidavit, which I accept, that he has complied with direction 6(d).

67 In the circumstances, the substance of the relief sought by the plaintiff should be granted.

68 I will discuss the form of orders with the legal representatives of the parties and hear any submissions in respect of outstanding matters, including costs.

LACHLAN JAMES VALLANCE (in his capacity as administrator with the will of ELLEN DOUGLAS LAIRD, deceased)

[1] Cf., Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar the Diocesan Bishp of Macedonian Orthodox Diocese of Australia and New Zealand & Anor [2008] HCA 42; (2008) 237 CLR 66.

[9] In that regard, Peake Real Estate appear to have, in fact, estimated a 'sale range' of '$6.5 million to $8 million'.