Deakin-Bell v NSW Trustee and Guardian

[2016] NSWSC 540

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Deakin-Bell v NSW Trustee and Guardian [2016] NSWSC 540

Hearing dates:

29 April 2016

Date of orders:

29 April 2016

Decision date:

29 April 2016

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. The plaintiff be granted leave to file and serve the notice of motion for default judgment dated 26 April 2016.

 

2. Judgment for the plaintiff for possession of all of the land comprised in Lot 13 in Deposited Plan 242676 being the land situated at 4 Apsley Street, Parish of Ballina in the County of Rous, in the State of New South Wales (the Property).

 

3. Leave be granted to the plaintiff to issue a writ of possession to enforce Order 2.

 

4. Execution of the writ of possession for the Property be stayed until midnight on Tuesday 5 July 2016.

 

5. After the Property has been sold, the plaintiff be entitled to apply the proceeds of sale towards payment of:

 

5.1. the principal sum of $30,000.00 owing under the registered Mortgage dated 11 November 1994 (the Mortgage);

 

5.2. pursuant to the terms of the Mortgage, and on an indemnity basis, the costs and expenses she has incurred in relation to the Mortgage and these proceedings to date, and any such costs that she incurs in the future; and

 

5.3. pre-judgment interest on the principal sum of $30,000.00 pursuant to section 100 of the Civil Procedure Act 2005 (NSW) for the period 6 September 2013 to 29 April 2016.

 

6. After deduction of the amounts referred to in Order 5 above, the plaintiff pay the balance of the proceeds of sale of the Property to:

 

6.1. any person who has by that time been appointed as administrator or executor of the Estate of Ms Mabel Deakin-Bell;    or

 6.2. if no person has been appointed administrator or executor, then to the Court.

Catchwords:

REAL PROPERTY – possession of land – where mortgagor deceased – no legal personal representative of the mortgagor’s estate – no defence by NSW Trustee and Guardian – where plaintiff notified those interested in mortgagor’s estate – consent to orders sought – order for possession made

Legislation Cited:

Civil Procedure Act 2005 (NSW)
Succession Act 2006 (NSW)

Cases Cited:

Gel Custodians v The Estate of the later Geoffrey Francis Bell [2013] NSWSC 973

Category:

Procedural and other rulings

Parties:

Gwendoline Rosemary Deakin-Bell (Plaintiff)
NSW Trustee and Guardian (Defendant)

Representation:

Counsel:
J Muir (Plaintiff)
No appearance (Defendant)

  Solicitors:
Hartnett Lawyers (Plaintiff)
NSW Trustee and Guardian (Defendant)

File Number(s):

2014/354291

Judgment

1. These proceedings commenced on 2 December 2014. The Statement of Claim as originally filed named as the defendant “Anthony Robert Bell as legal personal representative of the estate of Mabel Dawn Deakin-Bell”. At the time the proceedings were commenced although Mr Bell had been named as the executor in the Will of the late Mabel Dawn Deakin-Bell he had not sought nor obtained probate of her will.

2. In my judgment in Gel Custodians Pty Limited v The Estate of the late Geoffrey Francis Bell [2013] NSWSC 973 I made it clear that in circumstances where there was no legal person representative in the estate of a deceased mortgagor the appropriate Defendant in proceedings seeking possession of land was the NSW Trustee and Guardian. That resulted in the Plaintiff amending the Statement of Claim to name the NSW Trustee and Guardian as the Defendant in the proceedings and making cosmetic changes to the Statement of Claim to make reference to the deceased and to her named executor.

3. The Further Amended Statement of Claim filed on 18 March 2016 was served on the NSW Trustee and Guardian. The NSW Trustee and Guardian has not filed an appearance nor a defence in the proceedings. In those circumstances there is a default which entitles the Plaintiff to obtain a judgment for possession of the land.

4. In Gel Custodians I said at [71] that in some cases it may be appropriate for the court to make directions or orders to ensure that persons interested in the estate are at least aware of the proceedings. The reason for such directions or orders was that it was likely that the state of the law was that the NSW Trustee and Guardian had no positive duties or obligations to perform so the persons interested in the estate might be unaware of the proceedings.

5. In the present case the Plaintiff has ensured that the persons named as executor in the will and also a person who was related to the deceased and who made a successful application under the Succession Act2006 (NSW) for family provision to be notified of the proceedings. I have been provided with correspondence from solicitors acting for each of the named executor and the successful applicant in the Succession Act proceedings who have indicated that each agrees to proposed Short Minutes of Order provided to them by the solicitor for the Plaintiff.    Those Short Minutes of Order provide for a judgment for possession of the land, the issue of a writ to enforce that judgment, and what should be done with the proceeds of the sale of the property when that eventuates.

6. I am satisfied from the affidavit of Stephen Geoffrey Colman of 19 December 2014 that the occupiers of the property at 4 Apsley Street Ballina have been served with a Notice to Occupier and the Statement of Claim. The occupier is in fact the named executor in the will and apparently his son. In all those circumstances it is appropriate that the orders should be made.

7. The Orders I make are these:

1.   Leave is given to the Plaintiff to file and serve a Notice of Motion for default judgment dated 26 April 2016.

2.    Judgment for the Plaintiff for possession of all of the lands comprised in Lot 13 in Deposited Plan 242676 being the land situated at 4 Apsley Street Ballina in the State of New South Wales.

3.   Leave is granted to issue a Writ of Possession to enforce the judgment, the execution of such writ being stayed until midnight on Tuesday 5 July 2016.

4.   I also make orders in terms of Paragraphs 5 and 6 of the Plaintiff's Proposed Short Minutes of Order.

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Amendments

03 May 2016 - Initial of counsel changed on coversheet

Decision last updated: 03 May 2016