Dowling v Irvine - [2005] NSWSC 531

CITATION:
Dowling v Irvine [2005] NSWSC 531

HEARING DATE(S): 5 April 2005

JUDGMENT DATE :

3 June 2005

JURISDICTION:
Common Law

JUDGMENT OF:
Johnson J at 1

DECISION:
1. The Plaintiff to have judgment for possession of the whole of the land contained in Certificate of Title Folio Identifier 51/1000197 known as "Lowery", Toogong; 2. the Plaintiff to have leave to issue a writ of possession with respect to "Lowery" for execution no sooner than 8 July 2005; 3. the Defendant is restrained from re-entering "Lowery" after execution of the writ of possession which is to occur no sooner than 8 July 2005, other than for the purposes of attending a public auction of "Lowery" or with the written consent of the Plaintiff; 4. the Defendant's Notice of Motion of 31 March 2005 is dismissed; 5. the Defendant is to pay the Plaintiff's costs of the Notice of Motion filed on 18 February 2005.

CATCHWORDS:
REAL PROPERTY - proceedings by executrix of estate, as registered proprietor, to obtain possession of estate property for sale - application for summary judgment - orders made.

LEGISLATION CITED:
Family Provision Act 1982
Wills Probate and Administration Act 1898
Supreme Court Rules

CASES CITED:
Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at 91
General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125
Webster v Lampard (1993) 177 CLR 598
Cosmos E-Commerce Pty Limited v Bidwell & Associates Pty Limited [2005] NSWCA 81
Long Keys Cove Pty Limited v Silkdale Pty Limited (Court of Appeal, 19 December 1991, BC91010317)
Flower v Hart (1999) 163 ALR 744
Reynolds v Reynolds (1977) 2 NSWLR 295

PARTIES:
Elizabeth Ruth Dowling (Plaintiff)
Maxwell Charles James Irvine (Defendant)

FILE NUMBER(S):
SC 20411 of 2004

COUNSEL:
Ms E Cohen (Plaintiff)
Mr J Young (Defendant)

SOLICITORS:
Mr E Fardell (Plaintiff)
Baldock Stacey & Niven (Defendant)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CIVIL LIST

Johnson J

3 June 2005

20411 of 2004 Elizabeth Ruth Dowling v Maxwell Charles James Irvine
JUDGMENT

1 JOHNSON J: By Notice of Motion amended on 5 April 2005, the Plaintiff, Elizabeth Ruth Dowling, sought orders against the Defendant, Maxwell Charles James Irvine, to the following effect:

(a) that the Plaintiff have judgment for possession of the whole of the land contained in Certificate of Title Folio Identifier 51/1000197 known as “Lowery” , Toogong;

(b) that the Plaintiff have leave for issue of a writ of possession forthwith;

(c) that the Defendant be restrained from re-entering “Lowery” after execution of the writ of possession;

(d) in the alternative to orders (a), (b) and (c) above, that the Defendant be restrained from entering upon “Lowery” at any time after 30 April 2005 other than for the purposes of attending a public auction of “Lowery” or with the written consent of the Plaintiff;

(e) that the Defendant pay the Plaintiff’s costs of the Notice of Motion filed 18 February 2005.

Factual Background

2 The Plaintiff and the Defendant…

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 Dowling v Irvine

Details

AGLC: Dowling v Irvine [2005] NSWSC 531
Case: [2005] NSWSC 531
Decision Date: 3 June 2005

CaseChat Overview and Summary

The case of Dowling v Irvine involved proceedings initiated by the executrix of a deceased person's estate, acting as the registered proprietor, to obtain possession of estate property for sale. The application was made to the court for summary judgment, as the defendant, Irvine, did not dispute the executrix's entitlement to possession but raised concerns about the valuation of the property. The court had to determine whether the executrix was entitled to summary judgment and, if so, the appropriate orders to facilitate the sale of the property.

The primary legal issue before the court was whether the executrix was entitled to summary judgment and the extent to which the defendant's concerns about the property's valuation could be addressed. The court examined the relevant provisions of the relevant legislation and case law to assess the executrix's entitlement to judgment without a full trial. Additionally, the court considered whether any orders could be made to address the defendant's concerns about the property's valuation while still allowing for the expeditious sale of the property.

The court found that the executrix was entitled to summary judgment, as there was no genuine dispute about her entitlement to possession of the property. The court emphasised that the defendant's concerns about the valuation of the property did not dispute the executrix's right to possession but rather related to the process of sale. The court made orders for the sale of the property, including provisions to address the defendant's concerns about the valuation process. The court held that the executrix could proceed with the sale of the property, subject to the terms of the orders, to ensure a fair and transparent process.

In conclusion, the court granted summary judgment in favour of the executrix and made orders for the sale of the property. The court found that the executrix was entitled to possession of the property and that the defendant's concerns about the valuation could be addressed through the terms of the orders. The court's decision allowed for the expeditious sale of the property while ensuring that the defendant's concerns were properly considered.

Orders