Curry v Curry

[2017] NSWSC 461

Supreme Court

New South Wales

Medium Neutral Citation:

Curry v Curry [2017] NSWSC 461

Hearing dates:

21 April 2017

Date of orders:

21 April 2017

Decision date:

21 April 2017

Jurisdiction:

Common Law

Before:

Davies J

Decision:

(1)   The Defences filed 9 February 2017 are struck out.

 

(2)   The Plaintiff is granted leave to obtain default judgment.

 (3)   Leave to the Plaintiff issue a writ of possession such writ not to be executed before 16 June 2017.

Catchwords:

REAL PROPERTY – possession of land – plaintiff is registered proprietor – property devised to plaintiff under Will – defendants in occupation claiming entitlement under later will – probate granted in plaintiff’s favour – no right of defendants to occupy property

Category:

Procedural and other rulings

Parties:

John Paul Curry (Plaintiff)
Mark James Curry (First Defendant)
Deborah Finch (Second Defendant)

Representation:

Counsel:
P Thew (Plaintiff)
In person (Defendants)

  Solicitors:
Anderson Lawyers (Plaintiff)
Self-represented (Defendants)

File Number(s):

2017/9381

Judgment

1. The Plaintiff is the registered proprietor of land at 53 Dunalbyn Avenue, Woy Woy. It appears that the Plaintiff became the registered proprietor of the property as a result of being the sole beneficiary of the will of Marlene Curry who, in turn, was the sole beneficiary of her mother's will, that is, Alice Marjorie Olsen. The Plaintiff was the executor of the Will of Marlene Curry. Ultimately, the Plaintiff became the executor by representation of Alice Olsen's will. Probate was granted of both wills and the property was conveyed to the Plaintiff.

2. The Defendants have been in occupation of the property, it is alleged, since early 2015. The First Defendant, Mark Curry, is the son of the Plaintiff and Marlene Curry. The Second Defendant is his partner.

3. The Defendants have filed defences in identical terms. The defences allege, in substance, that the will of Marlene Curry that was admitted to probate as a result of the plaintiff's actions was not the last will of Marlene Curry, but rather, there was a later will made by her which left the property to the First Defendant.

4. When probate was being applied for, the First Defendant lodged in April 2015 a caveat in each of the estates requiring no grant to be made without notice to him. In respect of the stater of Alice Olssen his interest was said to be that he was the grandson of the deceased and he claimed “Promissory Estoppel Interest”. His interest in the estate of Marlene Curry was said to be “Son of the deceased”.

5. Solicitors acting for the First Defendant in October 2015 advised that the First Defendant was allowing the caveats to lapse. The First Defendant informed me that this was because the Plaintiff became ill and he thought it more appropriate to deal with this father's illness than to contest the probate.

6. The position is, however, that probate was granted and has not been sought to be set aside for fraud (as the First Defendant asserts was involved) or for any other reason. In those circumstances, the Plaintiff is the registered proprietor of the property and is solely entitled to possession unless some lease, licence or other arrangement has been made. The First Defendant does not identify any such arrangement. The Plaintiff pleads that he has requested the Defendants to vacate the property and that position appears to be accepted in the material contained in the defences.

7. It should be noted that the Registrar directed that particulars of the defences were to be filed. The First Defendant set out matters that were largely consistent with the defences filed. The Second Defendant, however, although joining in the First Defendant's claim, concedes that she does not have any claim or interest in the property. Any right she has to occupy the property would appear only to be derived from any licence given by the First Defendant if he was otherwise entitled to give it.

8. In my opinion, the defences do not disclose any defence to the Plaintiff's claim and they should therefore be struck out. In the circumstances, the Plaintiff is entitled to judgment if the rules are otherwise complied with.

9. Although the First Defendant and his partner have been unlawfully in occupation of the premises it has been their home. They say they need three to four months to move. In my opinion a period of eight weeks is appropriate in the circumstances.

10. I make the following orders:

1. The Defences filed 9 February 2017 are struck out.

2. The Plaintiff is granted leave to obtain default judgment.

3. Leave to the Plaintiff issue a writ of possession such writ not to be executed before 16 June 2017.

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Decision last updated: 26 April 2017