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Supreme Court of Victoria |
Last Updated: 18 September 2018
AT MELBOURNE
COMMON LAW DIVISION
TESTATORS FAMILY MAINTENANCE LIST
IN THE MATTER of Part IV of the
Administration and Probate Act 1958 
- and –
IN THE MATTER of the will and estate of SOULTANA KARANICOPOULOS, deceased
BETWEEN:
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JUDGE:
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WHERE HELD:
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Melbourne
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DATE OF HEARING:
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CASE MAY BE CITED AS:
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MEDIUM NEUTRAL CITATION:
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FAMILY PROVISION – Where deceased died intestate – Where
estate to be equally divided between two sons – Where one
son sought to
purchase deceased’s property through private sale – Where the other
son acting as administrator of the
estate sought to publicly auction the
property in circumstances where he also wished to purchase it – Adequate
provision for
proper maintenance and support – Where no need established
to justify the Court making a family provision order – Application
dismissed – Administration and Probate Act 1958 (Vic) ss 90 ,
91 , 91A .
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APPEARANCES:
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Counsel
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Solicitors
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For the Plaintiff
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Kennedy Guy
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For the Defendant
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Destra Law
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1 A dispute has arisen between two brothers over the estate of their deceased mother, Soultana Karanicopoulos. The brothers are adults and the only children of the deceased. The deceased did not leave a will and under the laws of intestacy, the brothers will each receive 50 per cent of her estate. It is agreed that the amount of distribution from the estate is adequate. The only issue in dispute is the nature of the provision. The plaintiff, Mr Theo Nicholas, currently resides in a property that is the main asset of the estate, and has done so for 30 years. He says that, rather than the property going to public auction where he may be outbid, he should have the opportunity to privately purchase it, based upon a valuation.
2 Mr Nicholas’s application is opposed by his brother, Mr Frank Karan. Mr Karan is the administrator of the estate.[1] Mr Karan says that there is no detriment to Mr Nicholas arising from selling the property, as he could simply move next door. Mr Nicholas owns the property next door to the estate property. Mr Karan says that the estate property should be sold at public auction and, if his brother wishes to purchase it, he should be the highest bidder. Mr Karan says that Mr Nicholas intends to eventually sell or develop both properties, and therefore obtain a financial windfall. Mr Nicholas denies that. Mr Karan says that he also wishes to purchase the property at auction.
3 Adequate provision has been made for the proper maintenance and support for Mr Nicholas. His claim will be dismissed. The principle against self-dealing, which is applicable to administrators such as Mr Karan, is noted.
(a) within 3 months of the date of these orders; or(b) in the event that the Plaintiff does not pay the amount specified in paragraph 2 within 3 months of the date of these orders, then the Plaintiff will pay the amount specified in paragraph 2 plus interest on the amount specified in paragraph 2, such interest to commence on the first day after 3 months from the date of these orders and calculated at 5.89% per annum until payment.
(a) The Plaintiff shall vacate the ... property;(b) The Defendant shall sell the ... property by public auction; and,
(c) The proceeds of the sale be applied as follows:
4 Mr Nicholas and Mr Karan are the only children of the deceased and her husband, Mr Christos Karanicopoulos. Mr Karanicopoulos died in 2014.
5 Mr Nicholas and Mr Karan are both now aged in their fifties.
6 The property in question is in the inner city and shall be referred to as No 114.[3] It was purchased by the deceased and her husband in 1973. Approximately six and a half years earlier, they had purchased the property next door, which shall be referred to as No 112. The parents lived in No 112 for some 40 years until their eventual admission into an aged care home.
7 In early 1985, No 112 was transferred to the brothers as tenants in common in equal shares.
8 In about October 1988, Mr Nicholas and his wife moved to the rear of No 114. They have lived there ever since.
9 In about 1989, for approximately six months, Mr Karan and his wife lived at the front of No 114.
10 In October 1999, Mr Karan transferred his interest in No 112 to Mr Nicholas.
11 There were various financial dealings and arrangements that ebbed and flowed between family members, including loans made, and No 112 and No 114 being used as security.
12 In September 2012, the Victorian Civil and Administrative Tribunal appointed State Trustees Limited as the deceased’s administrator. The following month, the Tribunal appointed State Trustees Limited as the administrator for her husband.
13 The main asset of the estate is No 114. The inventory of assets and liabilities dated 20 July 2016 values No 114 at $1.95 million.[4] The Court is informed that this is based on a valuation by Permanent Trustee Company Ltd of between $1.75 million and $1.95 million. No 114 is subject to a mortgage. The outstanding amount owed as at May 2018 is approximately $71,000.00. As at April 2018, there was approximately $21,000.00 owing in council rates.
Does the distribution of the deceased estate fail to make adequate provision for the proper maintenance and support of Mr Nicholas?
14 It is common ground between the
parties that Mr Nicholas is an eligible person to make an application for a
family provision order
under Part IV of the Administration and Probate Act
1958 (‘APA’). The applicable provisions at the relevant
time follow.[5]
90A Eligible person may apply for family provision order
(1) Subject to subsection (2), an application for a family provision order may be made to the Court by, or on behalf of, an eligible person.
(2) An application under subsection (1) must be made—
(a) within the time specified in
(b) otherwise in accordance with this Part and the Rules.
91 Court may make family provision order
(1) Despite anything to the contrary in this Act, on an application under
(2) The Court must not make a family provision order under subsection (1) unless satisfied—
(a) that the person is an eligible person; and
...
(c) that, at the time of death, the deceased had a moral duty to provide for the eligible person’s proper maintenance and support; and
(d) that the distribution of the deceased’s estate fails to make adequate provision for the proper maintenance and support of the eligible person, whether by—
(i) the deceased’s will (if any); or
(ii) the operation of Division 6 of
(iii) both the will and the operation of Division 6 of
(3) For the purposes of subsection (2)(b), the Court must disregard any means-tested government benefits that the eligible person has received or is eligible to receive.
(4) In determining the amount of provision to be made by a family provision order, if any, the Court must take into account—
(a) the degree to which, at the time of death, the deceased had a moral duty to provide for the eligible person; and
(b) the degree to which the distribution of the deceased’s estate fails to make adequate provision for the proper maintenance and support of the eligible person; and
...
(5) The amount of provision made by a family provision order—
(a) must not provide for an amount greater than is necessary for the eligible person’s proper maintenance and support; and
...
91A Factors to be considered in making family provision order
(1) In making a family provision order, the Court must have regard to—
(a) the deceased’s will, if any; and
(b) any evidence of the deceased’s reasons for making the dispositions in the deceased’s will (if any); and
(c) any other evidence of the deceased’s intentions in relation to providing for the eligible person.
(2) In making a family provision order, the Court may have regard to the following criteria—
(a) any family or other relationship between the deceased and the eligible person, including—
(i) the nature of the relationship; and
(ii) if relevant, the length of the relationship;
(b) any obligations or responsibilities of the deceased to—
(i) the eligible person; and
(ii) any other eligible person; and
(iii) the beneficiaries of the estate;
(c) the size and nature of the estate of the deceased and any charges and liabilities to which the estate is subject;
(d) the financial resources, including earning capacity, and the financial needs at the time of the hearing and for the foreseeable future of—
(i) the eligible person; and
(ii) any other eligible person; and
(iii) any beneficiary of the estate;
(e) any physical, mental or intellectual disability of any eligible person or any beneficiary of the estate;
(f) the age of the eligible person;
(g) any contribution (not for adequate consideration) of the eligible person to—
(i) building up the estate; or
(ii) the welfare of the deceased or the deceased’s family;
(h) any benefits previously given by the deceased to any eligible person or to any beneficiary;
(i) whether the eligible person was being maintained by the deceased before that deceased’s death either wholly or partly and, if the Court considers it relevant, the extent to which and the basis on which the deceased had done so;
(j) the liability of any other person to maintain the eligible person;
(k) the character and conduct of the eligible person or any other person;
(l) the effects a family provision order would have on the amounts received from the deceased’s estate by other beneficiaries;
(m) any other matter the Court considers relevant.
15 As outlined in s 91(2) , the Court must
not make a family provision order, unless satisfied that the person is an
‘eligible person’,[6]
which includes a child of the
deceased.[7] Further, the Court must
be satisfied that, at the time of their death, the deceased had a ‘moral
duty’ to provide for
the eligible person’s proper maintenance and
support,[8] and that the distribution
of the deceased’s estate by operation of the intestacy provisions fails to
make adequate provision
for such proper maintenance and
support.[9] These criteria must be
satisfied in order to invoke the discretionary jurisdiction of the Court to make
a family provision order.[10] The
amount of a family provision ‘must not provide for an amount greater than
is necessary for the eligible person’s
proper maintenance and
support’.[11]
16 Section
91(1) of the APA does not refer to ‘adequate’ provision in
relation to the proper maintenance and support of the eligible person; however,
pursuant to ss 91(2)(d) and 91 (4)(b) it is a factor to be considered in
determining the amount of any provision. In Re
McKenzie,[12] McMillan J stated
that:[13]
These words have developed a legal meaning over many years. Where a word used in statute has an established legal meaning, the Court assumes that Parliament intended that word to be used with that meaning, unless the context indicates otherwise.[14]
17 Further, on determining what constitutes adequate provision for a person’s proper maintenance and support, McMillan J stated that:[15]
Generally, ‘proper maintenance and support’ means provision from the estate not simply to alleviate poverty, but also to take into account the vicissitudes of life, whereas ‘adequate’ requires that any provision be sufficient for an applicant’s proper maintenance.[16] What constitutes adequate provision for the proper maintenance and support of an applicant involves a consideration of the mandatory and discretionary matters under the [APA], having regard to the meaning of these terms as developed in the jurisprudence of the family provision jurisdiction.[17] This also involves a consideration of the nature, extent and character of the estate and the other demands upon it ... In determining these questions, a balance must be drawn between the established claims of named beneficiaries, the needs of an applicant, the size of the estate, and the benefits provided to an applicant and others with legitimate claims upon the testator. The court’s function is not to ensure a fair distribution of the testator’s estate or to achieve equality amongst various claimants. It goes no further than making adequate provision for the proper maintenance and support of an applicant.[18]
18 On the limit imposed by s 91(5)(a) ,
McMillan J in Re McKenzie
stated:[19]
The nature and content of what is adequate provision is a flexible concept, adapted to conform to acceptable community standards, and involves a broad evaluative judgment not constrained by preconceptions and predispositions.[20]
19 In Re Wren,[21] Smith J found the limitations on a court’s ability to interfere with dispositions where there was inadequate provision made for an applicant, applied to both testate and intestate estates:[22]
The justification for the limitation [on interference] would appear to be as strong in the case of intestacy as in the case where there is a will; for the deceased may have known how his estate would devolve upon intestacy and chosen to die intestate; and even if he did not, nevertheless the mode of devolution upon intestacy is that which is regarded by the legislature as being, in the generality of cases, the fairest and most reasonable.[23]
20 Relevant to this point is that, under the applicable version of the APA,[24] where a person dies intestate and has children,[25] the estate ‘shall be distributed in equal shares among the children of the intestate living at his or her decease’.[26]
21 Finally, on the question of necessity as it applies to provision, Dodds-Streeton J reaffirmed the Victorian position, stating: ‘Victorian authority has held that although need is a relative concept, it must be shown in order to establish a claim.[27] A moral claim alone will not suffice’.[28]
22 On this point, in Collicoat v McMillan, Ormiston J stated:
‘[N]eed’ must be demonstrated before the jurisdiction is exercised. It follows that those who are capable of supporting themselves comfortably, and are likely to be able to do so for the rest of their lives, will find it difficult to show any breach of moral obligation to make adequate provision for proper maintenance and support.[29]
23 Mr Nicholas says that he does not seek a greater share of the estate but rather further provision by way of a right to purchase the estate. He will obtain a substantial benefit from the deceased’s estate by sale of No 114. Therefore, the Court does not need to consider whether the amount of distribution of the estate under intestacy is inadequate for his maintenance and support. He says the nature of the provision is inadequate.
24 Mr Nicholas says that he would suffer real detriment from the sale of No 114 at auction, as he may be outbid. Firstly, he argues that he would have to relocate and would thus incur relocation costs. Secondly, he would need to find new accommodation. Thirdly, buying a new house would incur additional costs such as stamp duty and conveyancing fees. Fourthly, he would lose the home in which he has lived for some 30 years. He says that particular loss cannot be quantified.
25 Mr Nicholas says that, in the circumstances, a wise and just testator in the deceased’s position ought to have known that it was inadequate for his maintenance and support to simply provide him with half of the net estate. Instead, the deceased should have provided him with greater security of accommodation. He says that the deceased also had a moral obligation to make adequate provision for him. A proper provision that the deceased should have made for him was to provide him with an opportunity to purchase the property. If he decides not to purchase the property, then it can be sold at auction and the net proceeds distributed equally between him and his brother.
26 Mr Nicholas says that such an outcome achieves the appropriate balance between the brothers’ competing interests. He says that it gives him the opportunity to avoid the detriment that would otherwise arise if No 114 is auctioned, whilst his brother would still receive a substantial sum of money from the sale. The purchase by private sale would not alter the interests of the brothers in the estate.
27 Mr Nicholas says that the Court has
wide powers under APA pt IV to make the orders sought. The Court has
wide power to structure the order in any way appropriate to the claim. The
cases show
flexibility. The orders sought would provide him with a real and
tangible benefit.
28 Mr Nicholas rejects his
brother’s claim that this is akin to a partner’s claim pursuant to
APA s 37A, and asserts it is a pt IV
claim.
29 On the factors to be considered in making
a family provision order pursuant to APA s 91A(2) , Mr Nicholas
says the following is relevant. Although he is married, he is separated from
his wife. The separation is an amicable
one and his wife continues to reside at
No 114. There is, however, a theoretical possibility that his wife may
bring an application
in the Family Court that will reduce his assets. No 112 is
owned by him, but it is subject to a mortgage. The monthly rent of $2,500
covers the mortgage.
30 Mr Nicholas also says that he has contributed to the renovation and improvement of No 114. That may be disputed but one cannot live in a property without making a contribution. He has a connection to the property as a home. Both brothers grew up there.
31 Mr Nicholas further says that his relationship with the deceased is one of parent and child, and parents have an obligation to provide for their children.
32 The size of the estate is a relevant factor, specifically, the value of the home. Mr Nicholas says it is relevant that he has been paying the mortgage since 2005 and continues to pay it. It has been reduced by $10,000 in that time, but there is interest accruing on it which he also pays.
33 Mr Nicholas says it is relevant that his parents allowed him to live in the house for many years.
34 Mr Nicholas says it is also relevant that there are no people whom the deceased was required to maintain other than he and his brother.
35 Mr Nicholas says that there is no disentitling conduct.
36 Finally, Mr Nicholas says that the effect of the family provision order sought will be to balance the brothers’ competing needs.
37 Mr Karan says that he has obligations as an administrator of the estate and that he is exercising his rights and obligations pursuant to APA s 38 to act overall in the best interests of the beneficiaries. He says that putting No 114 to public auction will enable both parties to bid and derive greater benefit for both beneficiaries. The auction will give a true market value of the property. It will enable the estate to be distributed in a fair and expeditious manner.
38 Mr Karan says that his brother’s application is a quasi ‘partner’s property election’ analogous to APA s 37A, but is dressed up as one for further provision.
39 Mr Karan says that the Court does not have the power to make the orders sought.
40 Alternatively, if the Court does have the power, then no orders should be made because the deceased left adequate provision for Mr Nicholas’s proper maintenance and support. There is therefore no need for the Court to proceed further to consider what family provision order should be made.
41 Mr Karan
says that a real problem is how the Court can comply with APA
s 97(1)(a) , which requires every family provision order to specify the
amount and nature of the provision. What is being sought is effectively
a conditional transfer. It gives the estate no certainty. It
could delay
finalisation of the estate for a year.
42 There is no risk to Mr Nicholas because he can attend the auction to make a bid.
43 There is no detriment to Mr Nicholas. As to relocation costs, there would not be any as he could just move next door. As to new accommodation, he could simply move next door. He would not have to buy a new house as he already owns No 112, and so will not incur additional costs of conveyancing and stamp duty. If he moves next door, he will stay in the area.
44 When considering the detriment, there is a detriment to the estate in the time and loss of interest because, if Mr Nicholas cannot pay for the property within the six months that he proposes to purchase it, then he will enjoy an interestfree period there.
45 Mr Karan says that Mr Nicholas’s primary motivation is financial. The latter has never once suggested that he would sell No 112, and then buy No 114. The equity in No 112 could be used by Mr Karan to purchase No 114. The motivation to retain both properties is for investment purposes.
46 Mr Karan says that the deceased discharged her moral and legal obligations to her sons by transferring No 112 to them equally and unencumbered in 1995, and now by intestacy provisions with equal distribution of the proceeds from the sale of No 114. The estate is sizeable and evenly split. Each brother will receive about $925,000.00. It is adequate provision. The deceased adequately provided for Mr Nicholas during her lifetime and now on her death.
47 The amount that Mr Nicholas says that he has spent on improvement, namely $70,500.00 over 30 years, is not much over that time.
48 No weight should be given to a theoretical claim by Mr Nicholas’s wife.
49 There are two beneficiaries here, and so this is not a proceeding analogous to cases where a single beneficiary seeks property of the trust absolutely.
50 Mr Nicholas has only decreased the amount of the mortgage owing by $10,000.00. If interest is 5 per cent, then that is $4,000.00 per annum. Any decrease of $10,000.00 is not a contribution in circumstances where he pays no rent, and noting that the rent for No 112 is $2,500.00 per month.
51 Mr Nicholas is living rent-free at No 114.
Oral evidence given by Mr Nicholas
52 During crossexamination, Mr Nicholas gave the following evidence:
(a) he has the option of just selling No 112 and purchasing No 114 outright;[30](b) No 112 is currently rented out at $2,500.00 per month;[31]
(c) he denies hoping to retain both No 112 and No 114 to develop them (for investment purposes);[32]
(d) he agrees that, if No 114 is sold, then he could live in No 112;[33]
(e) he concedes that the relocation costs were not very substantial;[34]
(f) he concedes that he would not have to find new accommodation;[35] and
(g) he does not want No 114 to go to auction because he does not want it sold.[36]
53 During reexamination, Mr Nicholas said that he had no property development experience at all.[37]
54 It was not in dispute that the deceased had a moral duty to provide for Mr Nicholas.
55 The onus is on Mr Nicholas to establish that the deceased provided inadequate provision for his proper maintenance and support. I find that he has not discharged that onus. Having regard to the operation of the intestacy provisions, as applied in this case, I find that the deceased made adequate provision for the proper maintenance and support of Mr Nicholas for the following reasons.
56 Mr Nicholas concedes that the amount of provision is adequate.
57 As to the nature of the provision, that is also adequate in the following circumstances.
58 Mr Nicholas has not established any need. I do not accept that any of the detriment relied upon by Mr Nicholas renders the nature of provision inadequate.
59 If he wishes to remain at No 114, he can simply bid at auction. Mr Nicholas is in the financial position of being able to do so as he has assets (No 112) and will be given a 50 per cent distribution from the proceeds of the sale of No 114. If he does not succeed in purchasing the property at auction then, as he said under cross-examination, he can move next door to No 112. Therefore, there is no necessity for him to incur the costs associated with purchasing a new property, finding new accommodation or relocating. Furthermore, he can remain in his neighbourhood.
60 Although he says that he has made improvements to the property, they are relatively minimal, as is the reduction in the mortgage. On the other hand, he has enjoyed the benefit of living rent-free in the property.
61 Mr Nicholas’s suggestion that his wife may bring a claim which would reduce his assets is speculative and provides no practical basis for concluding the nature of the provision is inadequate.
62 Adopting the course proposed by Mr Nicholas would simply delay distribution of the estate.
63 Given that there is adequate provision,
it is unnecessary to consider what family provision order should be made
pursuant to APA pt IV , nor whether the Court has the power to make
one.
64 Finally, although the issue of whether Mr Karan can purchase the property at auction has not been ventilated there is, as both counsel acknowledged, a long-established principle against self-dealing by administrators of estates.[38]
65 Mr Nicholas’s application is dismissed.
[1] The application for letters of administration was made on 25 July 2016, and granted on 29 July 2016. Case No. S PRB 2016 12048.
[2] Here, the plaintiff’s draft orders include the following footnote: ‘As set out in paragraph 60 of the Plaintiff’s submissions, the specified sum is to be calculated as (V – M – R) / 2, where:
• V is equal to the value of the ... property as determined by a sworn valuation to be prepared by a real estate valuer jointly appointed by the parties and paid for equally by the parties, and if the parties fail to agree on a valuer within 7 days of the date of these orders the defendant will forthwith nominate three valuers and the plaintiff will select one valuer from the three proposed valuers to prepare the sworn valuation;
• M is the value of the mortgage secured against the ... property as at the date of 7 May 2018; and
• R is the value of the outstanding council rates relating to the ... property as at 10 April 2018.’
[3] It is the land described in Certificate of Title Volume 03630 Folio 904: Exhibit ‘A’, 75–81.
[4] Exhibit ‘A’, 68–9.
[5] The provisions are extracted from authorised version no 122 of the APA.
[6] APA s 91(2)(a). Section
91(2)(b) refers to the whole or part dependence on the deceased for proper
maintenance and support, in relation to the ‘eligible persons’
listed under paragraphs (h) to (k) of the definition of ‘eligible
person’ in APA s 90.
[7] Ibid s 90 (definition of
‘eligible person’).
[8] Ibid s 91(2)(c).
[9] Ibid s 91(2)(d)(ii).
[10] Re Williams; Smith v Thwaites [2017] VSC 365, [12] (McMillan J).
[11] APA s 91(5)(a).
[12] Re McKenzie [2017] VSC 792.
[13] Ibid VSC 792, [55].
[14] See, eg, Davies v Western Australia [1904] HCA 46; (1904) 2 CLR 29, 42–3 (Griffiths CJ); Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661, 668 (Mason ACJ, Wilson, Deane and Dawson JJ); Palgo Holdings Pty Ltd v Gowans [2005] HCA 28; (2005) 221 CLR 249.
[15] Re McKenzie [2017] VSC 792, [56]. See also Re Williams; Smith v Thwaites [2017] VSC 365, [22], [24]–[25] (McMillan J).
[16] In essence, this concept is founded on the reasoning of Stout CJ in Allardice v Allardice [1909] NZGazLawRp 268; (1909) 29 NZLR 959 and has been applied in family provision cases time and time again. See also Bosch v Perpetual Trustee Co Ltd [1938] AC 463, 476 (Lord Romer).
[17] See, eg, Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201.
[18] See, eg, In re Hodgson [1955] VicLawRp 77; (1955) VLR 481; Blair v Blair [2004] VSCA 149; (2004) 10 VR 69; Delaney v Jones [2008] NSWSC 229.
[19] Re McKenzie [2017] VSC 792, [57].
[20] See, eg, Camernik v Reholc [2012] NSWSC 1537, [154] (Hallen J); Slack v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253, 284 [125]–[126] (White J), interpreting the similar legislative regime in New South Wales under s 59 of the Succession Act 2006 (NSW).
[21] Re Wren [1970] VicRp 58; [1970] VR 449.
[22] Ibid 451, followed in In the Estate of Bridges (1975) 12 SASR 1, 5–6 (Bray CJ).
[23] Citing Re Wade [1946] SAStRp 16; [1946] SASR 131, 134.
[24] Authorised version no 122 of the APA.
[25] This right is subject to other rights (eg, if the intestate leaves a partner, and has children, then the partner will be entitled to one-third of the estate: APA s 52(1)(a)).
[26] Ibid s 52(1)(f). Noting that s 52, which relates to distribution on intestacy, refers to the deceased’s ‘residuary estate’. Section 38(4) defines ‘residuary estate’ as: ‘The residue of the said money and any investments for the time being representing the same, including (but without prejudice to the trust for sale) any part of the estate of the deceased which may be retained unsold and is not required for the administration purposes aforesaid, is in Division six of this Part referred to as the residuary estate of an intestate’.
[27] Hallam v Maxwell [1998] VSC 131; see also In re Anderson (1975) 11 SASR 276, 283 (Zelling J).
[28] MacEwan Shaw v Shaw [2003] VSC 318; (2003) 11 VR 95, 104 [50].
[29] Collicoat v McMillan [1999] 3 VR 803, 820 [47].
[30] Transcript of Proceedings, Re Karanicopoulos; Nicholas v Karan (Supreme Court of Victoria, S CI 2017 04812, Ierodiaconou AsJ, 20 June 2018) 24 (‘Transcript’).
[31] Ibid 24.
[32] Ibid 26.
[33] Ibid.
[34] Ibid 27.
[35] Ibid.
[36] Ibid 27–8.
[37] Ibid 28.
[38] See, eg, Re Chomley [2014] VSC 220; (2014) 10 ASTLR 338; see also Re Tabone [1968] VicRp 16; [1968] VR 168, 171 (Winneke CJ) ‘the Court’s discretion should not be exercised in favour of the trustee, unless exceptional circumstances are established that satisfy it that its sanction is necessary in the interests of the trust estate, as for instance that the best price cannot be obtained without his participation in the bidding’; Patros v Patros [2007] VSC 83; (2007) 16 VR 182, 187 [15]–[17] (Cavanough J).
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