Removing occupiers from deceased estate properties — Order 53 applications

Case note: Damou v Damou & Anor [2025] VSC 14

A common problem faced by executors and administrators of deceased estates is how to deal with people continuing to occupy a property owned by a deceased person. Often, the occupier of the property is a child or relative of the deceased who has been given informal permission to stay in the property by the deceased, instead of through a formal lease with rent being paid.

A recent decision of the Supreme Court of Victoria (Court) in Damou v Damou & Anor [2025] VSC 14 (Damou) highlights the issues that executors and administrators ought to consider before commencing proceedings seeking the removal of occupiers in those circumstances.

What is an Order 53 application?

An Order 53 application is a summary proceeding for the recovery of land commenced according to the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules). It provides an executor or administrator of a deceased estate with a means to obtain orders of the Court to recover land which is occupied by a person or persons who:

• entered into occupation of the subject property without any legal authority or right to do so; or
• occupies a property usually under license despite the executor or administrator having withdrawn such license.

This is a particularly common scenario where children of the deceased person continue living in their parent’s property following their death and refuse to vacate during the period of the estate administration.

Background

Chris Damou (Plaintiff) was one of three children of Panelis Damou (Deceased). The Plaintiff was named as the executor of the Deceased’s last Will. The Deceased’s estate (Estate) was comprised mostly of his property at 40 Astley Street, Montmorency, Victoria (Property).

The Plaintiff’s two siblings, Nick Damou (Nick) and John Damou (John) were the defendants in the proceeding. Prior to the death of the Deceased, Nick and John were occupying the Property and continued doing so after his death. John was born with Down’s Syndrome,  suffers from other illnesses, and has lived the majority of his adult life at the Property. Nick lived with John at the Property as his full-time carer. The Deceased’s Will provided that his estate was to be divided equally and given to each of his three sons. In order for this to occur, the Plaintiff sought to sell the Property and advised Nick and John of his intentions. Initially, Nick and John agreed to vacate the Property, however, they requested that no further action was to be taken until they had arranged suitable accommodation to move into.

In the meantime, the Property was transferred to the Plaintiff in his capacity as the executor of the Estate. Approximately eight months passed and during such time, the Plaintiff continued to request that Nick and John vacate the Property and offered to pay an interim distribution of $10,000 to assist Nick and John with their relocation.

A month after the Plaintiff had made this offer, Nick advised him of the difficulties he’d encountered in attempting to find suitable accommodation and requested a larger interim distribution to assist with relocation.

The Plaintiff agreed to the larger interim distribution but made it conditional on Nick and John vacating within 30 days. The Plaintiff also foreshadowed that a failure to vacate would be met with an application to compel vacation under Order 53 of the Rules.

Nick and John did not accept the Plaintiff’s revised offer and were subsequently served with a notice to vacate the Property. The notice had the effect of revoking any license or consent to occupy the Property. The Plaintiff commenced the foreshadowed Order 53 application when Nick and John did not vacate within the notice period specified.

Shortly following the filing of the Plaintiff’s Order 53 application, John (via his litigation guardian) commenced a separate proceeding with the Court pursuant to Part IV of the Administration and Probate Act 1958 (Vic) (Act) (Part IV Application) by which he sought additional provision from the Estate. As more than 6 months had passed since probate of the Deceased’s Will had been granted to the Plaintiff, the Part IV Application was filed out of time (although the Estate had not been distributed).

As part of his Order 53 application, the Plaintiff submitted that:

• Nick and John had become trespassers upon the Property;
• Nick and John had been allowed considerable time to vacate the Property, particularly given the Deceased had died more than five years prior to the commencement of his Order 53 proceeding, while Probate of his Will was granted to the Plaintiff three years prior to the commencement of the proceeding;
• a sale of the Property was required to fund the distributions under the Will and any anticipated liabilities, given there was no other source of funds in the Estate; and
• John’s foreshadowed Part IV application did not create an equitable interest in the Property which provided him with a legal right to remain living there.

Key Findings

• The granting of relief under Order 53 is discretionary. That is, the Court is not bound to make a particular decision on the establishment of certain facts.
• John was a person under a disability and lacked any form of suitable and secure accommodation. The Court has an inherent jurisdiction ‘parens patriae’ to supplement the care and protection of vulnerable members in our community.
• Relief under Order 53 should not be given lightly.
• The outcome of the the Part IV Application might have an effect on entitlement to the Estate and in particular, the Property.  There was no urgency which required the application under Order 53 to be resolved prior to the Part IV proceeding. Consequently, the Court deferred resolving the Order 53 application until after the Part IV application was resolved or determined.
• Estate funds held in the trust account of the law firm representing the Plaintiff earmarked for the payment of legal fees could also be used to pay the Estate’s outstanding liabilities.
• If the Part IV application failed, the Order 53 application would return and be looked at more favourably.
• The Court held that it was inappropriate in those circumstances to remove Nick and John from the Property for the time being and adjourned the proceeding to allow John time to pursue the Part IV Application.

Conclusion

The decision in Damou highlights that there will not be an automatic eviction of an occupier under Order 53 simply by reason of the expected operation of a Will. Rather, the decision shows that surrounding context will be taken into account and discretion exercised – in particular whether the occupier is a person under some special disability and whether there is an urgent need for funds.

The Court’s decision in Damou also highlights the need for executors and administrators contemplating the removal of occupiers of properties forming part of deceased estates to obtain specialist legal advice before doing so. A failure to do so could result in an executor or administrator of a deceased estate receiving an adverse costs order of the Court should they bring an unsuccessful Order 53 application, and potentially having to pay such amounts from their own funds and not those belonging to the estate.

Contact us

Rigby Cooke Lawyers’ Wills, Trusts & Estates team can assist executors in resolving issues that arise during the administration of deceased estates. Similarly, we can advise and represent the individuals occupying a deceased’s property concerning their entitlements.

If you wish to discuss how we can assist you, please contact a member of our Wills, Trusts & Estates team.