Laura Angius and her estranged husband John Angius co-owned a residence at her death in 2012. They had separated in 2010 but had not had commenced divorce proceedings. Laura’s estate was valued in excess of $23 million. On 1 April 2014, Laura’s solicitor Gordon Salier was granted letters of administration with a copy of the will annexed.
On 30 September 2015, following multiple applications the Supreme Court made the following orders:
- The residence was to be sold, and
- John agreed to vacate the residence within 28 days.
John vacated the premises in 2017 following further proceedings; however, he brought a claim against the estate seeking $41,471 equal to 50 per cent of the repairs maintenance and improvements he’d undertaken to the residence since Laura’s death.
The Court awarded John $6,589 equal to 50% of the amounts in relation to fixtures, fittings and maintenance outlined in five invoices totalling $13,178.64; and a further $4,260 for 50% of the council rates, water rates and insurance premium for the years 2012 to 2016
John claimed that he had spent $55,738 on Laura’s funeral and $385,000 on a 12-person vault in which she was buried. The Court held that the “reasonable cost of a reasonable headstone” is recoverable from a deceased estate however the cost of a twelve-person vault was not a reasonable cost of a reasonable headstone for which the estate should be liable. Accordingly, the court awarded John $55,738.72. equal to one-twelfth of the cost of the vault plus the cost of the funeral expenses.
Gordon sought mesne profits at half market rent for his occupation of the residence from the date of death to the date he vacated the residence.
Mesne profits are the damages which a lessor is entitled to receive due to the tort of trespass of the lessee in remaining in possession following termination of the lease: the usual measure of mesne profits is the market rent for the premises which should have been paid for the period of its occupation. Importantly it does not depend on whether the person entitled to possession would have been able or willing to let the premises to someone else during the relevant period.
The Court held that as co-owner John had an implied licence to occupy the residence until 2015 because his occupation was with the apparent acquiescence or implied consent of the estate. Mesne profits were awarded for the period from 2015 to 2017 in the amount of $67,371.43 based on expert evidence that valued market rent for the property at $1,800.00 per week between 1 January 2015 and 31 December 2016 and $1,950.00 per week between 1 January 2017 and 1 May 2017.
The amount payable to John by the estate ($98,672.05) was set off against the amount he owed the estate ($118,333.48). Therefore John was ordered to pay $19,661.43 to the estate.