Dodd v Dodd

[2020] NSWSC 1094

Supreme Court

New South Wales

Medium Neutral Citation:

Dodd v Dodd [2020] NSWSC 1094

Hearing dates:

19 August 2020

Date of orders:

19 August 2020

Decision date:

19 August 2020

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Defence dated 25 July 2020 is struck out.

2. Leave to the plaintiff to move for default judgment and to issue writ of possession to enforce the judgment of the Court.

3. Remainder of proceedings after obtaining default judgment is transferred to the Equity Division.

4. Listed for Directions before Hallen J at 10am on 28 August 2020.

5. Parties granted liberty to apply on 2 days’ notice to Associate.

Catchwords:

LAND LAW – possession of land – where plaintiff is the executor of the will of the registered proprietor – where defendant went into occupation of property after deceased’s death – where defendant has claim for provision under the Succession Act – no defence to claim for possession – defence struck out – leave to plaintiff to obtain default judgment

Legislation Cited:

Succession Act 2006 (NSW) s 59

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Procedural and other rulings

Parties:

Marilyn Dodd (Plaintiff)
Peter Dodd (Defendant)

Representation:

Counsel:
M Twemlow (Plaintiff)
P Muscat (Defendant)

Solicitors:
Gillis Delaney Lawyers (Plaintiff)
Nicholas Dan (Defendant)

File Number(s):

2020/188557

Publication restriction:

Nil

Judgment

1. These proceedings commenced on 25 June 2020. The plaintiff seeks possession of land at 25 Rigney Street, Shoal Bay.

2. The plaintiff is the sister and the executor of the late John Dodd who was the registered proprietor of the property. Mr Dodd died on 5/6 March 2020. Probate of his will dated 20 November 2007 was granted to the plaintiff on 1 May 2020.

3. The plaintiff is the sole beneficiary of the deceased's estate. Subsequent to the deceased's death the defendant, who is the son of the deceased, on or about 27 March went into occupation of the property and has remained living on the property since that time. An auction had been scheduled for 25 July 2020, but that has had to be postponed on that day and on a subsequent day by reason of the defendant’s occupation of the land. A further auction is scheduled for 29 August 2020.

4. The defendant has filed a document described as a defence, but the bulk of the document consists of an affidavit explaining his entry on to the property and the fact that he has filed a summons claiming that provision be made for him from the estate of his father pursuant to s 59 of the Succession Act. The summons is returnable before the Probate and Succession judge on 28 August 2020.

5. Ms Muscat, for the defendant, says that the defendant will be seeking in those proceedings that the property be specifically devised to him. A claim under the Succession Act does not give rise to a caveatable interest, and in the same way does not amount to a defence to a claim for possession. To the extent that the application for relief under the Succession Act 2006 (NSW) is put forward as justifying the defendant's occupation of the property, such a claim does not amount to a defence to the claim for possession. The plaintiff is absolutely entitled to possession, notwithstanding that at some future time an order may be made under the Succession Act.

6. That claim by the defendant appears to be the only basis upon which he claims an entitlement to be in the premises. Accordingly, the defence filed 25 July 2020 will be struck out. The plaintiff will be given leave to apply for default judgment and for the issue of a writ of possession.

7. I do not have before me any of the details of the defendant's claim under the Succession Act to form any view of the likelihood of his success and whether the information would warrant the stay of any writ of execution. For those reasons, I will transfer the remainder of the proceedings, after the obtaining of default judgment, to the Equity Division to be listed in Justice Hallen's list on 28 August 2020 with the summons that has been filed by the defendant under the Succession Act.

8. The orders that I make therefore are that:

1. The defence filed 25 July 2020 is struck out.

2. Leave is given to the plaintiff to move for default judgment and to issue a writ of possession to enforce the judgment of the Court.

3. Remainder of proceedings after obtaining default judgment is transferred to the Equity Division.

4. Listed for Directions before Hallen J at 10am on 28 August 2020.

5. Parties granted liberty to apply on 2 days’ notice to Associate.

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Decision last updated: 19 August 2020