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

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.
In my judgment in Gel Custodians Pty Limited v…

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.

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Details

Case: [2016] NSWSC 540
Decision Date: 29 April 2016

CaseChat Overview and Summary

The matter involved a dispute between Deakin-Bell and the NSW Trustee and Guardian regarding the possession of certain land. The property in question was subject to a mortgage, and the mortgagor had since passed away. As there was no legal personal representative of the mortgagor’s estate, the NSW Trustee and Guardian argued that the plaintiff was not entitled to possession. However, the plaintiff had notified all individuals with an interest in the deceased's estate and obtained their consent to the orders sought. The case was heard in the Supreme Court of New South Wales.

The primary legal issue was whether the plaintiff could be granted possession of the land in the absence of a legal personal representative of the deceased mortgagor's estate. The court had to determine whether the NSW Trustee and Guardian's lack of a defence was sufficient to establish the plaintiff's entitlement to possession. Additionally, the court had to consider whether the plaintiff's notification to the interested parties and their consent to the orders sought was an adequate substitute for the absence of a legal personal representative.

The court held that the NSW Trustee and Guardian's lack of a defence was sufficient to establish the plaintiff's entitlement to possession of the property. The court found that the plaintiff's notification to the interested parties and their consent to the orders sought provided an adequate substitute for the absence of a legal personal representative. The court further held that the plaintiff had fulfilled their obligation to make reasonable efforts to locate the interested parties and obtain their consent. Consequently, the court made an order for possession in favour of the plaintiff.

The Supreme Court of New South Wales ordered that Deakin-Bell be granted possession of the property in question. The court found that the plaintiff had established their entitlement to possession, and that the absence of a legal personal representative of the deceased mortgagor's estate did not preclude the plaintiff from obtaining possession. The court also found that the plaintiff's notification to the interested parties and their consent to the orders sought provided an adequate substitute for the absence of a legal personal representative.

Orders