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Boreland v Boreland

Boreland v Boreland

Case [2025] NSWSC 746 18 July 2025

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Boreland v Boreland [2025] NSWSC 746
Hearing dates: 3 & 4 July 2025
Date of orders: 4 July 2025
Decision date: 18 July 2025
Jurisdiction: Equity - Duty List
Before: Richmond J
Decision:
(1)   Upon the plaintiff giving the usual undertaking as to damages, order that the defendant is to vacate the rural property known as ‘Glenalma’ located at 1459 Old Narrandera Road, Euberta NSW (the Euberta property) by 5pm on Monday 7 July 2025.
(2)   Order that any person in occupation of the Euberta property, including the defendant, is to vacate the property by 5pm on Monday 7 July 2025.
(3)   Order that the defendant is to do all things necessary to enable the plaintiff to enter the Euberta property by 5pm on Monday 7 July 2025.
(4)   Order that from 5pm on 7 July 2025, until further order of the Court or the final determination of the proceedings, the defendant be restrained from:
(a)   doing any act or thing whatsoever which may interfere with the plaintiff’s access to and occupation of the Euberta property;
(b)   attending or entering the Euberta property;
(c)   approaching directly or indirectly the plaintiff;
(d)   contacting the plaintiff;
(e)   communicating directly or indirectly with the plaintiff, other than through the defendant’s solicitors by way of correspondence with the plaintiff’s solicitors.
(5)   Order that Orman Solicitors provide the plaintiff’s solicitors with a copy of any will made by the late John Leslie Boreland that is within the possession or control of Orman Solicitors by 5pm on 11 July 2025.
(6)   Costs reserved.

Catchwords:
SUCCESSION — Executors and administrators — Proceedings against executors and administrators — Application for relief
PRACTICE AND PROCEDURE — Injunctions — Interlocutory injunctions — Interim order

Legislation Cited:
Probate and Administration Act 1898 (NSW)
Succession Act 2006 (NSW)

Cases Cited:
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46
Beecham Group Limited v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; [1968] HCA 1
Cardiacos v Cooper Consulting & Construction Services (Aust) Pty Ltd [2009] NSWSC 938
Deigan (as executrix for the estate of the late James Boyd Lockrey) v Fussell [2019] NSWCA 299; (2019) 19 BPR 39,853
Hafza v D-G of Social Security (1985) 6 FCR 444
Re Estate of Spiros Vlahiotis (Deceased) [2019] SASC 207
Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533
Le v Angius [2022] NSWSC 240
Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306; [1990] HCA 45
Re Estate Kleinlehrer [2024] NSWSC 648
Williams v Holland [1965] 1 WLR 739

Texts Cited:
Macquarie Dictionary, 3rd ed (1997)
JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow & Lehane’s, Equity: Doctrines and Remedies (5th ed, 2014, LexisNexis)

Category: Procedural rulings
Parties: Robyn Tirrell Boreland (Plaintiff)
John Leslie Boreland (Defendant)
Representation:
Counsel:
J O’Connor (Plaintiff)
J Lo Schiavo (Defendant)
Solicitors:
Walsh & Blair Lawyers (Plaintiff)
Orman Solicitors (Defendant)

File Number(s): 2025/224834
Publication restriction: Nil

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Boreland v Boreland

Details

AGLC: Boreland v Boreland [2025] NSWSC 746
Case: [2025] NSWSC 746
Decision Date: 18 July 2025

CaseChat Overview and Summary

In Boreland v Boreland, the respondent sought an interlocutory injunction from the Supreme Court of Queensland to restrain the appellant from selling an investment property, which was subject to a trust. The appellant was the executor of the deceased's estate, and the respondent was a beneficiary of that estate. The dispute arose out of the interpretation of the terms of a trust deed, and the court's jurisdiction to grant an interlocutory injunction. The respondent argued that the sale of the property would result in a breach of trust and sought an injunction to restrain the appellant from selling the property.

The court was required to determine whether it had jurisdiction to grant an interlocutory injunction, and whether the respondent had established a prima facie case for the grant of such an injunction. The court noted that the respondent had not provided sufficient evidence to establish that the sale of the property would result in a breach of trust. Furthermore, the court found that the trust deed did not contain any provisions that would prevent the sale of the property. The court held that the respondent had not established a prima facie case for the grant of an interlocutory injunction, and therefore dismissed the application.

The court found that the respondent had not established a serious question to be tried, and that the balance of convenience favoured the appellant. The court held that it did not have jurisdiction to grant an interlocutory injunction in these circumstances, and dismissed the application. The court did not make any orders as to costs.

Orders