IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
CommON LAW DIVISION
TRUSTS, EQUITY AND PROBATE List
S ECI 2019 04850 

MARIA AVERY (in her capacity as Executor of the Will and Estate of ILARIO COSIMO MANNO, deceased) 	Plaintiff	
		
v  		
		
LORRAINE KAY MANNO	Defendant	

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JUDGE:	Derham AsJ	
WHERE HELD:	Melbourne	
DATE OF HEARING:	10 September 2020	
DATE OF JUDGMENT:	21 September 2020	
CASE MAY BE CITED AS:	Avery v Manno	
MEDIUM NEUTRAL CITATION:	[2020] VSC 605	

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PRACTICE AND PROCEDURE – Application for summary judgment by defendant of plaintiff’s proceeding for judicial advice brought pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 – Whether plaintiff has no real prospect of success of being afforded judicial advice – Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158 – Mandie v Memart Nominees Pty Ltd, [2016] VSCA 4.

PRACTICE AND PROCEDURE – Whether application for judicial advice by executor who is also principal beneficiary of the estate of the deceased is an abuse of process – whether proceeding should be stayed or dismissed as an abuse of process – Williams v Spautz (1992) 174 CLR 509; Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; Moti v R (2011) HCA 50. 

WILLS AND ESTATES – Judicial advice – Plaintiff as executrix of the estate of the deceased seeks judicial advice as to the effect of transfers of land and a statutory declaration relating to land held by the deceased before his death as joint tenant with his widow – Whether proceeding susceptible to summary dismissal – whether proceeding should be stayed or dismissed as an abuse of process – Re Atkinson (1971) VR 612; Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand & Anor (2008) 237 CLR 66; Morris v Smoel [2013] VSCA 11; Re Estate Late Chow Cho-Poon; Application for judicial advice [2013] NSWSC 844; Application of Willoughby City Council (as manager of the Talus Reserve Trust) & Anor [2016] NSWSC 1717; Re The Macedonian Orthodox Church Community ‘Saint Dimitrij Solunski’ Springvale Inc [2020] VSC 274.

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr A Burnett	Petersen Westbrook Cameron	
			
For the Defendant	Ms V Plain	Davies Watson Lawyers	

TABLE OF CONTENTS

Introduction	1
Background	2
Relevant legal principles	5
Judicial advice	5
Summary dismissal	12
Stay or dismissal under r 23.01	13
Submissions	15
Defendant	15
Plaintiff	20
Consideration	22
Summary dismissal	22
Conclusion	30

HIS HONOUR:
Introduction
1	By originating motion filed 24 October 2019 pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Rules), the plaintiff seeks judicial advice in relation to the administration of the estate of Ilario Cosimo Manno (Deceased) who died on 8 April 2019.  The deceased left a will dated 17 July 2018 probate of which was granted to the plaintiff on 2 December 2019.  At the time the proceeding was commenced, the plaintiff’s grant of representation had not been made by the Court.
2	The plaintiff seeks judicial advice as to the effect of two unregistered transfers of land (Transfers), and an accompanying statutory declaration, and consequential declarations and directions.  The land the subject of the Transfers comprised three parcels of land near Mildura which were all held by the deceased and the defendant, his widow, as joint tenants (Land).  In particular, by the plaintiff’s summons filed on 11 February 2020, the plaintiff seeks judicial advice as to how the Transfers and statutory declaration are to take effect.  
3	The Transfers purport to transfer the deceased’s fee simple interest in each parcel of the Land from himself to himself in consideration of ‘My Desire To Sever Joint Proprietorship’.
4	The plaintiff seeks the opinion of the Court as to the effect of the Transfers and what she should do, for example whether she should bring legal proceedings against the defendant, and obtain directions from the Court on the matter, so that if she then followed the direction she would be protected from a claim by a beneficiary or a creditor arising from her action in accordance with the Court’s direction.
5	By Summons filed 17 June 2020, the defendant seeks orders for dismissal or a stay of the proceeding pursuant to r 23.01(1) of the Rules, alternatively, summary judgment for the defendant, pursuant to section 62 of the Civil Procedure Act 2010 (Vic) and Order 22 of the Rules.  The primary argument depended on the second of the bases, summary judgment.
6	The plaintiff has filed two affidavits of Gregory Westbrook, sworn 24 October 2019 (First Westbrook Affidavit) and 14 February 2020 (Second Westbrook Affidavit) respectively. The defendant relies on the affidavits of Lorraine Kay Manno affirmed 20 July 2020 (Manno Affidavit) and Nicholas Paul Davies affirmed 6 August 2020 (Davies Affidavit).
Background
7	On 17 July 2018, the Deceased executed his Will in the presence of John Stewart Irwin, a solicitor at the firm Martin Irwin & Richards, and Francie-Anne Costa, Law Clerk at the same firm.   On that day, the Deceased signed the two Transfers before Mr Irwin as witness.  On 3 August 2018 the Deceased signed a statutory declaration before Kay Elizabeth Martin, a solicitor at the firm Martin Irwin & Richards.  The Transfers and the statutory declaration were left with the firm Martin Irwin & Richards.  It seems likely that the Deceased said nothing about the Will or the Transfers to his wife, the defendant, while he was alive.  The defendant was registered as sole proprietor of the Land on 13 June 2019 by a survivorship application.
8	By his Will, the Deceased appointed his sister, the plaintiff, as executrix and trustee of his estate and after leaving to the defendant, his widow, a life estate in their home, one of the three parcels of land the subject of the Transfers, he left the residue of his estate to the plaintiff.
9	On 19 May 2020, the defendant commenced proceedings against the plaintiff, as executor of the Deceased’s estate, pursuant to Pt IV of the Administration and Probate Act 1958 (Vic).
10	The First Westbrook affidavit produces the Transfers and the statutory declaration,  states that these documents were left in the care of Martin Irwin & Richards, solicitors.  He states that these documents seek to sever the joint tenancy in which the Land was held by the deceased and the defendant.  On 5 September 2019 and 24 September 2019 he filed caveats on behalf of the plaintiff on the Land on the basis that there had been an imperfect gift in accordance with the rule in Strong v Bird.  He deposes that he has considered the legal effect of the unregistered transfers and believes that a number of matters are relevant considerations for the court.  These matters are expressed as follows:
Unregistered transfer of land
The position of an unregistered transfer was considered by the New South Wales Supreme Court in McNab v Earle [1981] 2 NSWLR 673.  Needham J held that a joint tenant cannot sever the joint tenancy unilaterally by execution of an unregistered transfer. The transfer would only be effective to sever the joint tenancy on registration as it would otherwise be revocable.  Needham J relied on the New South Wales equivalent to section 40 of the Transfer of Land Act 1958 which provides that instruments are not effective until registered.
This principle was considered but not resolved in Corin v Patton (1990) 169 CLR 540 at 562 (Mason CJ and McHugh J), 584 (Deane J).  On the authority of McNab v Earle, an unregistered transfer by itself appears to be insufficient to sever a joint tenancy.
Donatio mortis causa
The statutory declaration refers to Mr Manno’s terminal illness and his intention to ensure his sister receives the benefit of the property. This may be considered a gift in contemplation of death or adopting the Latin donatio mortis causa.  
There are three elements to constitute a donatio mortis causa.  First, the gift must be made in contemplation of the donor’s death.  Second, there must be delivery or a transfer of the means of getting at the property.  Third, the gift must be conditional upon it taking effect on the death of the donor, being revocable until that event occurs.  
In this case, the first and third elements are present. It is arguable that the late Mr Manno delivered the means of obtaining the gift by preparing a transfer of land.  In Dal Pont’s Law of Succession the author concludes  there is no reason  in principle why delivery of transfer documents cannot constitute a valid donation of Torrens system land.  Previously, the Australian courts have taken the position that it was not possible to give real property via a donatio mortis causa: Bayliss v Public Trustee (1988) 12 NSWLR 540.  In England, the Court of Appeal has now held that a donatio mortis causa of real property is valid: Sen v Headley [1991] Ch 425.
In Hobbes v NSW Trustee & Guardian [2014] NSWSC 570, White J preferred to follow the Australian cases that applied the principle that a donatio mortis causa of realty is not possible and said at that it was a matter for the Court of Appeal to decide whether Sen v Headley should be adopted. The position remains unresolved by Australian appellate courts. 
In Butt’s Land Law the author observes that if the doctrine of a donatio mortis causa is a trust then it is difficult to see why it should not apply to real property.
Equitable principles
The common law presumption in favour of joint proprietorship applies unless the parties indicate that they wish to hold property as tenants in common: Transfer of Land Act 1958, section 33(4).  A person may convey land to or vest land in himself: Property Law Act 1958, section 72(3).  Section 33(4) of the Act does not prevent the operation of equity: Sacks v Klein [2011] VSC 451. [25].  Accordingly, regardless of the position on the certificate of title, in certain circumstances, equity may intervene to impose a tenancy in common.
The Court has stated that ‘in equity, even slight circumstances are enough to indicate the parties did not intend to hold property as joint tenants ...slight circumstances would have been enough to indicate that it was intended that there should not be a joint tenancy ‘: Sacks v Klein [2011] VSC 451, [25].
More recently, in Re Wilson [2019] VSC 211, Derham AsJ found that an equity arose from the execution and delivery of a transfer as a completed transaction. However, this case is distinguishable from the present circumstances, as the transfer was executed by the husband and by the wife under a power of attorney.  Derham AsJ observed that the unilateral declaration of intention inconsistent with joint tenancy, without more, would not be sufficient to sever a joint tenancy in equity.
A further consideration is that Maria Avery was appointed  executor which  may engage the imperfect gift rule in Strong v Bird (1874) LR 18 Eq 315.  This rule provides that if a testator intends to make a gift but does not make a  complete  gift before his or her death and still has the intention of making the gift at  the time of death  and  appoints  the donee his executor, then equity will assist the donee.  In Cope v Keen (1961) 118 CLR 1 at 8, Kitto J stated the conditions for the application of the rule as:
(i)	that at some time in his lifetime the testator made a purported immediate gift of specific property to another person (or in the case of a debt a purported immediately operative voluntary release of it);
(ii)	that though the testator’s intention at the time was that what he did should take effect by way of present gift, it failed to do so for want of compliance with the legal requisites for a complete divesting of the title from the intending donor in favour of the intended donee;
(iii)	that the testator still had when he died the intention that the property should be treated as having been effectually given to the intended donee;
(iv)	that the testator left a will appointing the intended donee as the executor or one of the executors of the testator. 
Kitto J then stated:
Where these conditions are satisfied the purported donee takes the property free from the dispositions of the will, as the testator intended it to be, and therefore holds it for his own benefit.
The plaintiff humbly seeks the Court’ s guidance on the above issues.
11	This account of the law relevant to the question for advise was said by Counsel for the plaintiff to be instead of a memorandum of opinion of Counsel and a means of exposing the question in an open and transparent manner.  The proceeding was clearly commenced joining the defendant as a party so as to benefit from a contradictor.
Relevant legal principles
Judicial advice
12	The plaintiff’s application is made under Rule 54.02 of the Rules, the terms of which need not be set out.  These rules are functionally equivalent to, and should be given a construction that is in accord with the requirements of, s 63 of the Trustee Act 1925 (NSW), although they are quite different in their detailed terms.  The High Court considered the United Kingdom Rules, from which Order 54 is derived, as functionally equivalent to s 63 of the New South Wales legislation.  The plurality said:
That there should be such similarities in the effect achieved by the different provisions is hardly surprising when it is recognised that each is directed to the same end.  Each provides for a procedure which, if adopted, will not only protect a trustee from later complaint that he or she should have acted otherwise, but also protect the trustee from personal liability for costs incurred.  And where the question for the Court is whether the trustee would act properly in instituting or defending litigation, the answer given will necessarily affect the parties to that other litigation.  In particular, the judicial advice proceedings may yield an order which will give one party to the litigation (the trustee) power to resort to a fund in order to meet the costs incurred in pursuit or defence of the litigation.
13	In my recent decision in Re The Macedonian Orthodox Church Community ‘Saint Dimitrij Solunski’ Springvale Inc I summarised a number of propositions relevant to applications for judicial advice that had been established by the authorities.  I restate and expand those propositions, so as to take account of the circumstances of this case, in the following paragraphs.
14	Rule 54.02 is the only statutory basis in Victoria for a personal representative of a deceased estate or trustee of a trust to seek the advice and directions of the court.  The Trustee Acts in other States and Territories generally make express provision for such applications to be made.
15	The procedure is a summary procedure, intended to enable questions arising in the administration of an estate or a trust to be resolved cheaply and simply and operate as an exception to the court’s ordinary function of deciding disputes between competing litigants.  The summary nature of the procedure is important to an understanding of the evidence the Court is entitled to rely upon in giving its advice.  That evidence is ordinarily untested.  The extent of the information available to the Court and its apparent reliability are factors going to the exercise of the discretion to give the advice.  That is:
…while the time and cost involved in giving judicial advice at an early stage of litigation, when the issues involved in disputes about rights may not be fully sharpened and it may not be possible for the factual position to be as efficiently exposed as in a trial, may be factors relevant to a decision not to grant judicial advice but to let the matter be examined in conventional litigation, they are not factors which either automatically bar judicial advice or are so weighty as generally to compel the court not to grant the advice.
16	The executor or trustee generally places all relevant circumstances before the Court and seeks an opinion, advice or direction that in those circumstances the trustee would be justified in taking a certain course.  It is a mistake to think that, on an application for judicial advice, a trustee must necessarily ‘prove’ facts according to a certain standard of proof to enable findings of fact to be made as in the case of adversarial litigation.
17	The purpose of the procedure is to enable a trustee or executor to obtain the direction or opinion of the Court on a matter of administration or management, or as to the construction of the will or trust instrument, without the need to commence an administration suit with all its attendant delay and cost.  
18	Where an executor or trustee is in doubt as to the course of action it should adopt, it is always entitled to take the opinion of the court as to what it should do.  If in doubt as to whether or not it should take legal proceedings, then it is entitled to apply to the court for directions on the matter.
19	The provision for a trustee to obtain judicial advice about the prosecution or defence of litigation is a recognition of both the fact that the office of trustee is ordinarily a gratuitous office, and the fact that a trustee is entitled to an indemnity for all costs and expenses properly incurred in performance of the trustee’s duties.  Obtaining judicial advice resolves doubt about whether it is proper for a trustee to incur the costs and expenses of litigation.
20	It operates as an exception to the court’s ordinary function of deciding disputes between competing litigants.  It affords a facility of giving ‘private advice’ because its function is to give personal protection to the trustee.  The obtaining of judicial advice resolves doubts about whether it is proper for a trustee to incur the costs and expenses of prosecuting or defending litigation.  Resolving these doubts means that the interests of the trust will not be subordinated to the trustee’s fear of personal liability for costs. What, precisely, is meant by ‘private advice’ may depend on the nature of the particular case and the ambit of r 54.02 is not confined to the provision of ‘private, personal advice’.
21	The adversarial nature of the proceedings and the fact that the trustee is being sued for breach of trust are not matters of special significance.  There is no principle governing an application under Order 54 to the effect that the adversarial nature of the proceedings has the result that it is inappropriate to give advice.   
22	Some forms of advice about adversarial cases may be in the best interests of the trust estate.  An approach that treats an adversarial character as being always, or at least very often, fatal to the success of a judicial advice application, contradicts what the Privy Council saw as the sole function of the court, namely ‘..in exercising its jurisdiction to give directions on a trustee’s application the court is essentially engaged solely in determining what ought to be done in the best interests of the trust estate and not in determining the rights of adversarial parties’.
23	In Re AGW Funds Management Limited, Sifris J (as he then was) put the position where there are disputed questions of fact  simply by saying ‘the jurisdiction is discretionary and that the procedure may in certain cases be unsuitable for disputed questions of fact’.
24	There is but one jurisdictional bar to relief: the applicant must point to the existence of a question respecting the management or administration of the trust property or a question respecting the interpretation of the trust instrument.  No other limitation confines a court’s discretion to exercise its power to give judicial advice, other than the subject-matter, scope and purpose of the legislation.
25	Since the decision of the High Court in Macedonian Church St Petka, Courts have become somewhat less reluctant to give advice in some circumstances where previously they might have declined as a matter of discretion to do so.  As Brereton J observed in the Application of Willoughby City Council (as manager of the Talus Reserve Trust) & Anor (Talus Reserve Trust Case), historically courts have declined to give judicial advice on matters of basic controversy, or where the rights of beneficiaries will be affected, as distinct from matters of management and administration.  In particular, as a rule, the Court would not, as a matter of discretion, give advice in contentious situations because the proceedings are essentially private advice given by the Court ex parte to a trustee upon information supplied by the trustee.  Where there is controversy, it is undesirable that the rights of the parties should depend to any degree upon facts that have not been established in the normal manner.  Where there is controversy, the proper procedure is by way of originating motion where all parties are served and have the opportunity to be heard.
26	The court’s sole purpose in giving judicial advice is to determine what ought to be done in the best interests of the estate or trust, and that while it is not the court’s purpose to determine the rights of adversaries, that could be done as a necessary incident of determining what course ought to be followed in the best interests of the estate or trust.
27	As the quote above at [15] shows, an uncertain factual position may be a factor relevant to a decision not to grant judicial advice but to let the matter be examined in conventional litigation. The High Court in Macedonian Church St Petka observed that there may be factors justifying a decision not to grant judicial advice, and that it may be the case that the Court would properly decline judicial advice if, for example, a contested construction suit constituted by the disputing parties and resolved by a judge acting on evidence appeared to be more apt to the resolution of a question.  
28	It is the usual practice for the Court to be assisted on an application for judicial advice by being provided with a legal opinion.  Justice Lindsay of the Supreme Court of New South Wales has usefully stated the rationale for the provision of an opinion of counsel and the reasons for it in Re Estate Late Chow Cho-Poon; Application for judicial advice.  He observed that the opinion, usually from an independently-minded barrister, should be directed to the substance of each question identified for the Court’s consideration.  But the law does not require such an opinion, nor can it be said that every application must be accompanied by such an opinion.  In practice, however, such an opinion is usually important because:
(a)	the speed and efficiency with which an application for judicial advice can be dealt with derives from a combination of the efforts of both the legal profession and the Court;
(b)	a well drafted opinion provides comfort to the Court upon a consideration whether questions identified for the opinion, advice and direction of the Court are ripe for consideration;
(c)	the professional independence required of counsel in the analysis of a question stated for opinion, advice or direction adds value to counsel’s opinion, for which he or she is professionally responsible, more than does a statement in the form of a mere submission;
(d)	an expression of opinion by counsel in a formal opinion may, if not the subject of legal professional privilege, provide a firm foundation upon which persons interested in the due administration of a trust may decide whether (and, if so, how) they should seek to participate in proceedings commenced as an application for judicial advice;
(e)	an efficient administration of the summary jurisdiction exercised by the Court is aided by the availability of a considered opinion, by competent counsel upon whose judgement the Court is entitled to rely, whether or not (upon due consideration) it decides to agree with, or differ from, counsel’s conclusions; and
(f)	the availability of a formal opinion from counsel, prepared in anticipation of an application, may, at least in some cases, either forestall any need for an application to Court being pressed or establish parameters within which a dispute about the due administration of a trust may be litigated.  It might result in a consensus or crystallise questions in dispute, but if not it could provide a foundation for the trustee to ‘build an estoppel’ against interested parties who acquiesce in the trustee’s action.
29	The Court, by virtue of the legislation governing its procedures (including the Rules and the Civil Procedure Act 2010 (Vic)) and the general principles of equity, is required to have regard to considerations of expediency in the service of the jurisdiction it exercises in aid of the due administration of a trust, and in particular must have regard to the overarching purpose of the Civil Procedure Act 2010 (Vic) and the Rules in relation to civil proceedings to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.  The reference to the ‘real issues in dispute’ needs to be read in the context that the court must seek to give effect to the overarching purpose in the exercise of any of its powers, or in the interpretation of those powers, whether those powers are a part of the Court’s inherent jurisdiction, implied jurisdiction or statutory jurisdiction and that it applies to all civil proceedings.  A civil proceeding means any proceeding in a court other than a criminal proceeding or quasi- criminal proceeding.  The overarching purpose thus applies to applications for judicial advice notwithstanding that there may not be a ‘dispute’.
Summary dismissal
30	In relation to the law applicable to the summary dismissal of proceedings, the following is a summary:
(a)	Part 4.4 of the Civil Procedure Act 2010 sets out the test for summary judgment: a court may give summary judgment if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, has no real prospect of success (s 63);
(b)	this liberalises the rules governing summary judgment in Victoria, such that it is easier to dispose of unmeritorious claims or defences summarily; 
(c)	the test is whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success.  That is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test; 
(d)	the real chance of success test permits of the possibility that there may be cases in which it appears that although the respondent’s case is not ‘hopeless’ or ‘bound to fail’, it does not have a real prospect of succeeding; 
(e)	courts must continue to exercise the power to terminate proceedings summarily with caution and only exercise the power if it is clear that there is no real question to be tried;
(f)	the power must be exercised in accordance with the overarching purpose of the Act and taking into account the fact that, if granted, a party will be deprived of the chance to pursue its claim or defence;  
(g)	if there is no real prospect of success, a court may nevertheless allow a matter to proceed to trial if either it is not in the interests of justice to summarily dispose of the proceeding or the dispute is of such a nature that only a full hearing on the merits is appropriate; and
(h)	summary judgment will be ordered more readily where the issue involves a pure question of law than where there is a disputed question of fact. 
Stay or dismissal under r 23.01
31	The particular aspect of this rule that the defendant seeks to invoke is the ground that the proceeding is an abuse of the process of the Court.  Under this rule, and the inherent jurisdiction of the Court, the Court has power to control and supervise its process to prevent injustice.  This is supported by two policy considerations:  
(a)	first, the public interest in the administration of justice requires that the courts protect their ability to function as courts ensuring that their processes are used fairly both by state and citizen; and 
(b)	second, that public confidence in the courts will be eroded if the courts do not protect their ability in such manner.  
32	What amounts to abuse of court process is insusceptible of a formulation comprising closed categories.  The possible varieties of abuse of process are only limited by human ingenuity and the categories are not closed.  At least one of three characteristics will be present in many cases of abuse of process:
(a)	the court’s processes being invoked for an illegitimate or collateral purpose;
(b)	the use of the court’s procedures being unjustifiably oppressive to a party; or
(c)	the use of the court’s procedures bringing the administration of justice into disrepute.
33	The circumstances in which a proceeding may be classified as an abuse of process are so wide ranging that only overly general statements of principle are able to be stated without reference to the particular facts that are raised for consideration.  For the purposes of the application in this case, the following propositions (some of which overlap) may be applicable:
(a)	proceedings are brought for an improper purpose, and thus constitute an abuse of process, where the purpose of bringing them is not to prosecute them to a conclusion but to use them as a means of obtaining some advantage for which they are not designed or some collateral advantage beyond what the law offers. An improper act by the party instituting the proceedings is not an essential ingredient in the concept of abuse of process;
(b)	a proceeding amounts to an abuse of process when the plaintiff uses the process of the court to effect an object not within the scope of the process, or for a purpose other than that for which the proceeding is properly designed, or to secure some collateral advantage beyond what the law offers.  In so determining, there is a distinction between the ultimate purpose of bringing the proceeding and the immediate purpose.  If the immediate purpose is within the scope of the process instituted, the existence of the ultimate purpose cannot constitute an abuse of process when that purpose is to bring about a result for which the law provides in the event that the proceedings terminate in the plaintiff’s favour;
(c)	the power to stay a proceeding as an abuse of process extends to the prevention of an abuse of process resulting in oppression, even if the moving party has a prima facie case or must be assumed to have a prima facie case;
(d)	the purpose of the party instituting the proceedings is of crucial importance.  If the proceedings are merely a stalking-horse to coerce the defendant in some way entirely outside the ambit of the legal claim upon which the Court is asked to adjudicate, they are regarded as an abuse of process for this purpose; and
(e)	the improper purpose need not be the sole purpose of the moving party, so long as it is his predominant purpose.
Submissions
Defendant
34	The defendant submitted that it is settled law that disputed questions of fact cannot be determined by application under Order 54 of the Rules.  Reference was made to a number of decision to illustrate the point, Markin v Animals Australia Federation & Anor, Re AGW Funds Management Limited, Application of Willoughby City Council (as manager of the Talus Reserve Trust) & Anor, and Tsankis as Executor and Trustee of the Estate of Geoffrey Douglas Roland Lilburne (deceased) -v- Lilburne.  As I will show (and the defendant’s Counsel acknowledged in argument), that is too strong a statement.  
35	The defendant submits that the plaintiff’s claim does not have any ‘real prospect of success’ because the judicial advice sought requires a controversial factual determination to be made by the Court, regarding whether or not a joint tenancy in respect of lands jointly owned by the Deceased and the defendant, was severed by  the Deceased, prior to his death, in circumstances where the alleged severance is disputed by the defendant.  The factual determination required cannot be determined  by an Order  54 application.
36	The Originating Motion seeks judicial advice as to whether the plaintiff has  an interest in the Land in circumstances where the Deceased before his death signed the Transfers and made the statutory declaration which purported to sever the joint tenancy held by the Deceased and the defendant; and does so in circumstances where:
(a)	the plaintiff is not merely the executor and trustee of the Deceased’s estate; she is also the sole beneficiary of the residue;
(b)	the Transfers were never presented for registration;
(c)	the defendant is now the registered proprietor of the Land and was registered by survivorship application on 13 June 2019 (pursuant to s 50 of the Transfer of Land Act 1958 (Vic) (TLA)) in circumstances where she had no knowledge of the purported severance;
(d)	by virtue of s 42 of the TLA, the defendant’s proprietorship of the Land is indefeasible at law, thus any interest of the plaintiff must be equitable or otherwise based upon a claim against the defendant in personam;
(e)	caveats were lodged on the titles to the Land on behalf of the plaintiff on 5 September 2019, nearly three months after registration of the defendant’s survivorship application;
(f)	there is no evidence of the defendant being notified of the Transfers or the statutory declaration before the registration of her survivorship application;
(g)	there is no evidence as to whether the Deceased gave his solicitors instructions concerning what  was to  be  done  with the Transfers after he executed them.  In  particular,  there  is no evidence as  to  whether  the  Transfers were intended to be lodged before or after the death of the Deceased, or whether it was intended to give notice of them to the defendant; and
(h)	there is no evidence as to who drafted the statutory declaration and the Transfers, nor is there any evidence from the witnesses to the Transfers and statutory declaration.
37	For the Court to give any opinion as to whether there has been a severance of the joint tenancies pursuant to which the Land was held, further facts are needed, including  whether –
(a)	the defendant had knowledge of the Transfers and statutory declaration, or the circumstances by which they came into being;
(b)	the defendant and Deceased had conversations about them;
(c)	the defendant and the Deceased made a promise not to sever the joint tenancy;
(d)	the Deceased or his representatives made enquiries with the Commonwealth Bank (the mortgagee) in relation to producing the Certificates of Title for the purposes of registering the Transfers;
(e)	the Commonwealth Bank would have cooperated with an attempt to sever the joint tenancy;
(f)	the transfers of land were in registerable form;
(g)	the Deceased had done whatever was necessary to place the transfers  of land beyond his recall; and
(h)	the Deceased gave directions not to lodge the transfer of land until after his death;
38	The factually controversial nature of the alleged severance of the joint tenancy means that the summary nature of seeking judicial advice under r 54.02 is inappropriate. These complexities cannot be ameliorated by the plaintiff giving better or more detailed evidence, or a revised pleading.  Rather, what is needed is direct evidence from the plaintiff, the defendant and most importantly, the solicitors who were involved in the witnessing and drawing of the Transfers and statutory declaration, and the Deceased’s will, and the testing of that evidence by cross examination.  In other words, the plaintiff’s case should be commenced by Writ in the usual manner.
39	The second basis of the defendant’s application is that the plaintiff’s originating motion for judicial advice should be dismissed or stayed pursuant to r 23.01 of the Rules because it is an attempt by the plaintiff to invoke the court’s processes for an illegitimate or collateral purpose, which is an abuse of process.  The illegitimate or collateral purpose is that the plaintiff is using the application for judicial advice to advance her interests as the sole beneficiary of the estate, while wearing the ‘hat’ of executor of the estate, for the purpose of protecting herself from any personal costs order. 
40	The costs protection is intended to protect a trustee from liability in relation to their duties as trustee.  However, the court ought not overlook the fact that the plaintiff is the sole residual beneficiary of the estate and this fact cannot be divorced from her role as trustee.
41	The application is entirely self-serving and in the interests of the plaintiff only.  As executor and trustee, the plaintiff has fiduciary duties, including the duty to act in the best interest of the estate and to avoid conflicts of interest.  The plaintiff is acting contrary to her fiduciary duties by applying for judicial advice in an effort to protect herself from a personal costs order in the event the advice is not favourable to her interests as a beneficiary.
42	Where a proceeding is brought pursuant to Order 54 by a beneficiary who makes a claim adverse to other beneficiaries and takes advantage of the convenient procedure by originating motion to get a question determined which, but for this procedure, would be the subject of a proceeding commenced by writ, the rule enforced in adverse litigation is applied, and the unsuccessful party is ordered to pay costs.  Notwithstanding the fact that the proceeding has been brought by the plaintiff in her capacity as the executor of the estate of the Deceased, it is in reality an application for her own benefit to take advantage of a convenient procedure to get a question determined which, but for Order 54, would have to be determined in a proceeding commenced by writ and most importantly, with exposure to a costs order against the plaintiff in her personal capacity.
43	Despite the defendant’s outline of submissions referring to many authorities, some of which I have noted above, Counsel produced and relied upon just one, the decision of the High Court in Corin v Patton.  The defendant’s Counsel submitted that this case sits squarely and on all fours with the factual scenario in Corin v Patton.  It was contended that the plaintiff’s case for judicial advice cannot succeed because of the clear factual dispute that arises as between the defendant and the plaintiff and the lack of evidence that is before the Court that would be required for the Court to make a determination as to whether or not this joint tenancy was unilaterally severed before the deceased’s death.
Plaintiff
44	The plaintiff submitted that there were two matters in issue.  First, whether there are disputed questions of fact in this proceeding that would prevent the Court from determining an application under r 54.02 of the Rules.  Second, the merits of the defendant’s application to dismiss the proceeding.
45	In support of the first matter, Counsel for the plaintiff referred to the some of the propositions derived from the authorities, particularly the High Court decision in Macedonian Church St Petka, to submit that the existence of a disputed state of facts is a factor going to the exercise of the discretion to give the advice.  It is not fatal to a judicial advice application.  Submissions were made as to the other authorities referred to by the defendant, that a careful examination showed those cases suggests that a court can adopt a fluid approach and confine its advice to appropriate matters and that none of the cases proceeded by way of summary judgment. 
46	There is a general reluctance of courts to order summary judgment unless it is clear that there is no real question to be tried.  This has been expressed as a need for a court to exercise great care given the manifest interests of justice which require a determination of issues at a final hearing.  A case that has real as opposed to fanciful chance of success is not worthy of summary judgment.
47	This application for advice arose as a consequence of the uncertainty of advising the plaintiff as executrix on how to administer the deceased estate.  An executor or executrix is put in a position of great responsibility bound by a positive duty to be the defender of the will.  The plaintiff is left in an uncertain position.  She seeks the assistance of the court to understand a dilemma she faces regarding dealing with documents that were provided to her as part of a bundle.  The deceased’s Will has left a life interest in properties to the defendant where, if the right of survivorship applies, she is entitled to be sole proprietor.  In addition, the deceased has left documents which purport to sever the joint tenancy he shared with the defendant and, arguably, by the statutory declaration, gift an interest in the Land to the plaintiff.  
48	The First Westbrook affidavit sets out a summary of the possible legal issues for the Court to determine.  Mr Westbrook has quite appropriately and fairly acknowledged the competing authorities in favour of both parties.  There can be no doubt that there is uncertainty as to how the plaintiff should proceed.  The originating motion and summons are drafted in a broad way to encompass possible avenues for the Court to adopt.  Based on the urging in the defendant’s submissions, it may be to recommend the plaintiff issue a writ and statement of claim.  Alternatively, the Court may direct the parties to agree on possible questions for judicial advice.
49	There are a number of possible answers that the Court may provide should the summary judgment application be dismissed.  The Court may well say the statutory declaration and transfers are of no effect resulting in the defendant obtaining the properties by way of survivorship.   Contrary to the submissions made on behalf of the defendant, the judicial advice application was not made for a self-serving purpose but rather as a result of the uncertainties as to how the plaintiff should administer the estate.  The belligerent submission that a personal costs order should be made is entirely inappropriate.
50	The defendant’s application for summary judgment proceeds on the footing that there is no more evidence to be given in order for the court to consider whether it is appropriate to give advice to the executrix, and that is not the case.  There is further evidence, but it is yet to be adduced.  The application for judicial advice was interrupted by the application for dismissal, and the prior threat of such an application.  The plaintiff does not seek in this proceeding for the Court to determine whether there has been a severance of the joint tenancy or whether the rule in Strong v Bird does apply.  It merely seeks advice as to what the plaintiff should do.  Whether she is justified in commencing a proceeding or whether the parties should agree on the facts and the Court should determine questions. 
51	The plaintiff can point to the existence of a question regarding the administration of the trust property and questions regarding the manner in which the Will is to be understood.  In the circumstances, the defendant’s summons filed 17 June 2020 should be dismissed with costs.
Consideration
Summary dismissal
52	The very notion that an application for judicial advice may be the subject of summary dismissal is novel.  If it were truly the case, as the defendant submitted, that disputed questions of fact cannot be determined by an application for judicial advice, then there may be an avenue for summary dismissal.  But that is clearly not the case.  As my account of the law discloses, the adversarial nature of the proceeding does not automatically bar it from being the subject of judicial advice.  As the High Court made clear in Macedonian Church St Petka, there is but one jurisdictional bar to relief, namely that the plaintiff must point to the existence of a question respecting the management or administration of the trust property or a question respecting the interpretation of the trust instrument.
53	True it is that, historically, courts have declined to give judicial advice on matters of basic controversy, in contentious situations or where the rights of beneficiaries will be affected, as distinct from matters of management and administration.  But as the cases disclose, whether it is appropriate to give the advice sought where there are some controversial facts is a matter for the exercise of the Court’s discretion.  
54	The defendant referred to and relied on other authorities to contend that there was no real prospect of the Court giving the judicial advice sought (see above [34]).  The plaintiff submitted, and I agree, that a careful examination of those authorities does not support the defendant’s submission that in the circumstances of this case the plaintiff had no real prospect of success.  Those authorities showed that the court can adopt a fluid approach and confine its advice to appropriate matters:  
(a)	in Markin v Animals Australia Federation, Moore J answered two of the five questions posed, with two questions unnecessary to answer, and declined to answer one question.  His Honour declined to answer a question about the amount of a dividend ‘actually’ received from a private company where a part of the dividend ‘paid’ to the deceased estate had been set off against the deceased’s loan account with the company saying:
The Court’s jurisdiction under Order 54 is discretionary and may not be suitable for resolving disputed questions of fact.   Given the parties’ conflicting position on this question, a determination of the amount of the dividend ‘actually received’ by the estate would require the Court to make findings of fact on the basis of both disputed and incomplete evidence.  In the circumstances, the Court declines to answer this question.  
The disputed and incomplete evidence is not referred to by His Honour and it is not possible to identify the nature and extent of the dispute and the evidence before the Court.  This should be compared to the Court’s answers to Question 1 that a dividend did occur, and under Question 3, that the whole of the divided belonged to the specific beneficiary and this in part depended on a finding as to the meaning and effect of the evidence;   
(b)	in Re AGW Funds Management Limited, Sifris J refused to provide advice on the propriety of a trustee’s actions which was sought to be answered by the Court instanter or overnight.  At issue was whether the responsible entity of managed investment schemes, who was also the manager, should accept an offer to purchase a walnut crop from its parent company.  A group of growers who were members of the schemes opposed the sale.  The Growers had submitted that as there were other better courses available to the Trustee, including a higher price (matters which it wished to establish by evidence), the Trustee was not acting properly.  Sifris J noted, as I have said earlier, that the jurisdiction is discretionary and that the procedure may in certain cases be unsuitable for disputed questions of fact.  His Honour declined to give the advice for several reasons.  First, he was unable and unwilling to give the advice in the time frame sought, that is instanter or overnight.  Second, His Honour was unable to:
‘determine the propriety of the Trustee’s proposed course of action and in particular whether its decision and discretion was exercised in good faith and with due regard to the relevant issues, including of course those raised by the Growers.  This evaluation is difficult and I decline to undertake it in the circumstances referred to.
Third, the application was in substance an inter partes dispute and although, as stated in Macedonian Church St Petka, this was not a ground sufficient in and of itself for refusing to give judicial advice, in appropriate cases it may be so. Because of the totality of circumstances His Honour referred to he considered it not an appropriate case in which to do so.  Fourth, he was concerned about the propriety of a Victorian Supreme Court giving advice to a Tasmanian trustee which appeared to have no nexus to Victoria;
(c)	x Application of Willoughby City Council (as manager of the Talus Reserve Trust) & Anor, to which I have referred in my summary of the law above, concerned land reserved for public recreation administered under a trust managed by a local City Council.  The Council leased part of the land to a tennis club which proposed to sub-let a part of the land to a commercial business.  The Council sought advice, in its capacity as trustee, as to the validity of arrangements between the council, the tennis club and the commercial business.  Brereton J was willing in substance to advise council on its powers to grant a lease and that the council would not be justified in giving its consent to a proposed sublease.  In the course of his reasons he said, however, that it is not the function of judicial advice to quell a controversy of the kind exposed by the application and it was an inappropriate vehicle to resolve the dispute involved.  After considering various options he concluded:
Had I been inclined, on the current state of the proceedings, in favour of the position for which the plaintiffs contend, I would not have given advice under s 63, but would have required the proceedings to be reconstituted as a claim for declaratory relief, joining the 2013 Plaintiffs as defendants, and requiring advertisement of the proceedings to enable other interested persons to apply to be joined or heard. However, as I have concluded that the plaintiffs would not be justified in consenting to the proposed sublease, such advice can be given without reconstitution of the proceedings.
In this case, therefore, whether it was appropriate to give judicial advice depended on whether there was scope for the proposed sub-lease to satisfy the requirement that it be for the purpose of public recreation.  If there was scope for such a conclusion, then the proceeding would have been reconstituted as a claim for declaratory relief, and further parties joined.  As it turned out, there was no scope for such a finding and the judicial advice could be given, and was; and
(d)	in Tsaknis v Lilburne  EM Heenan J provided preliminary judicial advice as to whether the plaintiff as the existing executor and trustee of the estate of the deceased (Geoffrey DR Lilburne) had sufficient reason to oppose the claim for double probate and related matters sought by Mr David Lilburne (who was named as an executor and trustee in the will of the deceased and to whom leave was reserved in the grant to apply for probate).  His Honour rejected a submission that judicial advice should not be provided in matters involving a contest of facts following Macedonian Church St Petka.  His Honour was careful to confine the application to directions for the trustee rather than embarking on a determination of the application for a double grant of probate.  He considered the evidence and the law and, before making detailed directions, concluded:
For these reasons I consider that there should be a trial of an issue to determine whether or not Mr David Lilburne’s application for a double grant should be passed over.  It follows that I consider that directions should be made, substantially as sought, by Mr Tsaknis …to the effect that he, as the present sole executor and trustee may oppose the application for the double grant and apply for the revocation of the liberty reserved for Mr David Lilburne to apply for a grant and for incidental orders.  
55	In addition to these matters of law concerning the defendant’s fundamental objection to the application for advice, it is necessary to look to the alleged lack of relevant evidence and factual controversies to see whether they truly do involve the Court in the determination of contentious issues in order to give judicial advice.  The defendant identifies a number of further facts or factual controversies (see above at [37]).  The first three (37(a), (b) and (c)) do not appear controversial at all.  The fourth (37(d)) might need to be the subject of further evidence, but it should be noted that one joint proprietor is entitled to call for the certificate of title from the mortgage to enable a transfer severing a joint tenancy to be registered.  The fifth (37(e)) is therefore likely to be wrong.  The sixth (37(f)) is apparent on the face of the Transfers.  The seventh (37(g)) may not be relevant as it appears that application of the rule in Strong v Bird is the subject of the advice.  The eighth (37(h)) could well require further evidence from the solicitor who prepared the Transfers and statutory declaration and with whom they were left by the deceased.
56	The defendants submissions conflate the application for judicial advice with the determination of any application commenced in consequence of the advice.  The plaintiff is not seeking to know the answer to the question, just whether the Court will advise the plaintiff that she is justified in making an application on the basis of the rule in Strong v Bird.  This conflation was evident from the defendant’s contention that the plaintiff’s case for judicial advice cannot succeed because of the clear factual dispute that arises as between the defendant and the plaintiff and the lack of evidence that is before the Court that would be required for the Court to make a determination as to whether or not this joint tenancy was unilaterally severed before the deceased’s death.  The Court is not being asked to determine that question, at least not yet.  
57	The situation faced by the plaintiff is that its application has been interrupted by the threat, and the making, of the application for summary dismissal.  Not all the facts necessary for the court to give judicial advice have been adduced, as the defendant was at pains to point out.  This makes it inevitable, given the necessity for the Court to exercise a discretion in the ultimate determination of the question, that it is not possible to say at this stage that the application for judicial advice has no real prospects of success.  Put another way, it is not fanciful to suppose that the court may give to the plaintiff an answer to the question raised.  In saying that, I must emphasise that I have not embarked upon a consideration the question presently framed for judicial advice, namely what is the effect of the Transfers and statutory declaration.  That is because, first, as I have said, it may be that not all the facts necessary for the court to give judicial advice as to the question are before the court.  Second, because the parties did not address the substantive legal issues involved in the provision of the judicial advice, and those issues are particularly concerned with the application of the rule in Strong v Bird to the facts of the matter.  What is clear, however, is that the deceased did deal with the Land in his will as if he retained an equal and undivided half part or share in it. That could only be the case if the joint tenancy had been effectively severed.
58	This may be illustrated by a consideration of the decision in Re Atkinson.  In that case a testator’s principal asset consisted of a farm property (Spray Farm on the Bellarine Peninsular) which, during his lifetime, was owned by him and his wife as joint tenants, and the legal estate of which on the death of the testator, vested in the window as the surviving spouse.  From the terms of the deceased’s will it appeared that the testator intended to benefit certain persons, including his widow and son, from his real property, and whilst the widow claimed she was solely entitled to the property as the surviving joint tenant, the son alleged that it was a partnership asset of the deceased and the widow.  The evidence of such a partnership was inconclusive. 
59	The personal representative, a trustee company, having failed to obtain an indemnity from the son and members of his family, sought the advice of the Court as to whether it was bound to take action against the widow in these circumstances, and whether it would be compelled to use its own funds for this purpose.  It appeared that the son had already issued proceedings under Part IV of the Administration and Probate Act 1958 and further proposed to commence an action against his mother with respect to his claim that the real property was a partnership asset, which would of course mean that the land was held by the registered proprietors, in equity, as tenants in common.  
60	Gillard J held that in the absence of an indemnity, the trustee company was not bound to commence proceedings at its own expense against the widow, as the son had an equity to seek a remedy on behalf of the estate of the testator by himself initiating proceedings for a declaratory judgement against the widow and an account of the partnership assets, if any, since the date of death.  In the course of his reasons, Gillard J noted that in the circumstances of that case the trustee company was under a duty to get in the trust estate, and, prima facie, it would be bound to enforce any right, title or interest which the testator might have possessed in relation to the property concerned. If, without the application to the Court, it had failed to do so, then it would have been required to justify its inaction by showing that any proceedings taken would have been fruitless.  In the course of the hearing (which was made in the Practice Court and extended over three days), Gillard J allowed an amendment to the questions before him to include a question which directly raised whether the beneficiaries, in particular the son, would have the necessary standing to bring action against the widow (his mother) to vindicate the testator’s interest, if any, in the relevant property.
61	After an examination of the authorities, he concluded that the son did have an interest, in particular an equity, to seek relief on behalf of the estate. The result, if the son were successful in contending that there had been a severance of the joint tenancy, is that the deceased’s interest in the property would fall into the estate for use in the due course of administration.  His Honour noted that:
 … [I]ndeed, the usual situation in which such an action has to be launched is that in which the executor himself, the proper guardian of the estate, is in default, and thus his rights have to be put in motion by some other person on behalf of the estate. 
62	Relevantly to this case, the decision in Re Atkinson illustrates two points;  
(a)	first, that the plaintiff as executrix is under a duty to get in the deceased’s estate, and, prima facie, is bound to enforce any right, title or interest which the testator might have possessed in relation to the Land.  In that regard I note that any assets recovered by the plaintiff as executrix in getting in the deceased’s estate will not only be for her benefit but also for the benefit of the creditors of the deceased’s estate, which may include the defendant if her Part IV proceeding is successful; and  
(b)	second, that the usual situation in which the plaintiff, as the beneficiary of the residue of the estate, may bring proceedings herself on behalf of the estate to recover estate property is where the executor is in default in doing so.
63	The second point has relevance in two ways to the present application.  First, it illustrates the propriety of the plaintiff making out an application for judicial advice in circumstances where she in doubt as to the course of action she should adopt.  Second, it is an answer to the second ground upon which the defendant applies to stay or dismiss the proceeding, namely that it is an abuse of process because it is brought for an illegitimate or collateral purpose, being to advance her interests as the sole beneficiary of the residuary estate.
64	Another aspect of the decision in Re Atkinson may also be relevant to the current matter. It is the issue of a partnership between the deceased and his widow that was contended, in substance, to result in a severance of the joint tenancy in equity.  In this case, the statutory declaration shows that the Land, which had previously been owned by the Deceased’s father, Giuseppe Manno, and was gifted to the Deceased and the defendant, was used as vineyards for grape production at the time of the declaration was made in August 2018.  Facts relating to the manner in which the grape production was undertaken may be relevant in this case.
65	In my view, this proceeding does not amount to an abuse of process.  The plaintiff is not using the application to effect an object not within the scope of an application for judicial advice, nor for a purpose other than that for which such an application is designed.  The question of whether the plaintiff should have an indemnity for her costs of any proceeding brought, or for this proceeding, remains to be determined.  As the application is presently constituted, she is entitled to take the opinion of the court as to what she should do.  She is in doubt as to whether or not she should commence legal proceedings to claim on behalf of the deceased estate an interest in the Land and so is entitled to apply to the court for directions on the matter. 
66	The Court will be astute to ensure that the plaintiff does not secure some collateral advantage beyond what the law offers.   The immediate purpose of the application is within the scope of jurisdiction established by the Rules and the authorities to which I have referred.  
Conclusion
67	For these reasons, I am not satisfied that either basis for dismissing or staying the proceeding is made out.  The defendant’s summons filed on 17 June 2020 should be dismissed.  Whether the costs should follow the event is another matter about which further evidence may be relevant, in particular as to the dealings between the parties leading up to the issue of the summons, and a more complete explanation for the plaintiff’s delay in pressing on with her application for judicial advice.  
68	I will list the application for directions on a mutually convenient date so that the parties may address the question of costs and the future conduct of the application.