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 are siblings. They are two of the three children of the late Verdun John Irvine and the late Enid Ruth Irvine. The Plaintiff and the Defendant have a brother, Robert John Irvine.

3 The Plaintiff is the Executrix of the Estate of the late Verdun John Irvine who died on 9 September 1992 having made his last Will on 12 November 1987. Probate of the Will was granted to the Plaintiff on 19 November 1992.

4 The Plaintiff, as Executrix of the Estate of the late Verdun John Irvine, is the registered proprietor of “Lowery”. As such, the Plaintiff holds “Lowery” on trust for the beneficiaries of the Estate of the late Verdun John Irvine. The beneficiaries are the three siblings – Robert John Irvine, the Plaintiff and the Defendant.

5 On 14 October 1994, Cohen J, in Equity Division proceedings No. 2009 of 1993 and No. 4253 of 1993, made orders pursuant to the Family Provision Act 1982 which, inter alia:

(a) confirmed the Plaintiff as the Executor and Trustee of the Estate of the late Verdun John Irvine;

(b) created a life tenancy in the southern part of “Lowery” in favour of Enid Ruth Irvine, the widow of Verdun John Irvine;

(c) ordered that, in lieu of the benefits to which the Defendant was entitled under the Will of Verdun John Irvine, the Defendant is to receive 45% of the residue of the estate of Verdun John Irvine.

6 Accordingly, as a result of the orders of Cohen J, the Defendant was entitled as beneficiary to 45% of the residue of the estate of the late Verdun John Irvine and the Plaintiff and Robert John Irvine were entitled to 27.5% each. The principal asset in the estate was and remains “Lowery”.

7 Cohen J referred in his judgment (pages 4.8, 13.3, 23.2) to the ill-feeling and bitterness that existed between the present Plaintiff and the Defendant prior to and in 1994. Regrettably, it is apparent that those feelings persist and are reflected in the present dispute between the parties.

8 Enid Ruth Irvine died on 29 June 2002 having made her last Will on 2 April 1993. Administration of the Estate of the late Enid Ruth Irvine was granted to the Defendant on 23 July 2004.

9 Between 1994 and June 2002, the Defendant and the late Enid Ruth Irvine operated a partnership business on “Lowery” grazing livestock, growing crops and removing timber.

10 In 1998, “Lowery” was subdivided and the northern part was sold pursuant to orders made by Cohen J on 14 October 1994. Thereafter, the Defendant and his mother continued to farm and maintain the remaining southern part of “Lowery” in which the mother had a life interest. Hereafter in this judgment, reference to “Lowery” relates to the southern part of the property only.

11 Following the death of Enid Ruth Irvine on 29 June 2002, the Defendant has remained in occupation of “Lowery”. The Defendant does not reside at “Lowery” but lives in Barrack Street, Toogong. He uses “Lowery” for agricultural purposes.

12 Both the Plaintiff and the Defendant have sworn affidavits. There are some areas of dispute revealed in the affidavits. Neither deponent was cross-examined before me. Neither Ms Cohen, Counsel for the Plaintiff, nor Mr Young, Counsel for the Defendant, submitted that it was necessary for me to resolve any area of factual dispute. There is some controversy concerning the precise basis upon which the Defendant remained in possession of the property after 29 June 2002. It is the Plaintiff’s evidence that, on 29 June 2002, the Defendant was requested to vacate “Lowery” with the Plaintiff agreeing to a six-month delay to enable the Defendant to move stock, with the Defendant to pay an agistment fee in the meantime. The Plaintiff maintains that the Defendant has been directed, on more than one occasion since January 2003, to vacate “Lowery” but has failed to do so. The Defendant maintains that the Plaintiff consented to him remaining on “Lowery” for at least 12 months from 10 January 2003 upon payment of an agistment fee.

13 By letter dated 29 January 2004, the Plaintiff required the Defendant to vacate “Lowery” within seven days and foreshadowed an application to the Court if he did not do so. By letter to the Defendant dated 25 February 2004, the Plaintiff noted that she required vacant possession of the property and said “following the recent rain, as you have not vacated as requested, under no circumstances are you to prepare any paddocks for crops, sow any crops or continue with any activity whatsoever on “Lowery”.”

14 On 2 March 2004, the Plaintiff commenced Equity Division proceedings No. 6484 of 2003 seeking orders against the Defendant under the Family Provision Act 1982 with respect to the Estate of the late Enid Ruth Irvine. On 18 August 2004, the Defendant applied for orders in Equity Division proceedings No. 2009 of 1993 and No. 6484 of 2003 seeking to enforce compliance by the Plaintiff with what were said to be her obligations as Executor of the Estate of Verdun John Irvine and the orders of Cohen J made on 14 October 1994. On 26 October 2004, by consent, orders were made for mediation of the disputes in Equity Division proceedings No. 2009 of 1993 and No. 6484 of 2003.

15 On 19 November 2004, the Plaintiff filed a Statement of Claim in the present proceedings seeking orders, inter alia, that the Defendant give possession of “Lowery” to the Plaintiff.

16 On 18 February 2005, the Plaintiff filed a Notice of Motion in the present proceedings seeking an order for possession of “Lowery” and injunctive relief.

17 On 23 March 2005, the Defendant filed a Defence in the present proceedings. In paragraph 23 of the Defence, the Defendant claims, inter alia, that he is entitled to remain in possession of “Lowery”. He asserts such an entitlement upon the basis of an implied agreement between the Plaintiff and the Defendant or, alternatively, between the late Enid Ruth Irvine and the Defendant that the Defendant shall be entitled to remain in possession of “Lowery” and any chattels thereon and to farm the property until such time as the Plaintiff has fulfilled all of her obligations as Executor of the Estate of the late Verdun John Irvine. It is asserted in the Defence that the Plaintiff has not yet fulfilled all of her obligations as Executor of that Estate. The Defendant also claims that the Plaintiff has waived her right to seek, and is estopped from seeking, possession of “Lowery”. In the alternative, it is said that the Plaintiff is not entitled to possession of “Lowery” without reasonable notice, which is said to be a period of at least 12 months from the date of the proceedings. It is further asserted in paragraph 23(d) of the Defence, that the Statement of Claim was filed at a time when the Plaintiff was in breach of an order in the Equity Division of this Court dated 26 October 2004 and that it would be unconscionable that the Plaintiff be given possession of the property at all or whilst in breach of that order.

18 On 29 March 2005, the Defendant filed a Notice of Motion in Equity Division proceedings No. 2009 of 1993 and No. 6484 of 2003 seeking to enforce the order for mediation in those proceedings.

19 On 31 March 2005, the Defendant filed a Cross Claim in the present proceedings. The Cross Claim repeated the matters contained in paragraph 23 of the Defence. The Cross Claim sought, inter alia, a declaration that the Defendant was entitled to remain in possession of “Lowery” until such time as the Plaintiff is no longer in breach of any order of this Court or, alternatively, until such time as reasonable notice is given.

20 On 31 March 2005, the Defendant also filed, in the present proceedings, a Notice of Motion seeking:

(a) an order that the proceedings be transferred to the Equity Division and be heard together with proceedings 2009 or 1993 and 6484 of 2003, with the evidence in each proceedings to be read as evidence in each other proceedings;

(b) alternatively to (a), an order that these proceedings be stayed pending final orders in proceedings 2009 of 1993 and 6484 of 2003;

(c) an order that the Plaintiff/Cross Defendant’s Notice of Motion dated 18 February 2005 be dismissed, or alternatively, stood over pending final orders in proceedings 2009 of 1993 and 6484 of 2003;

(d) costs.

21 On 5 April 2005, the matter came before me as the Common Law Duty Judge. Following a hearing, I directed that the parties reduce the balance of their submissions to writing and I reserved my decision. Thereafter, I received written submissions from Counsel for both parties.

The Application for Possession

22 Despite the protracted and somewhat complex history set out above, a limited number of matters appear to be critical to the resolution of the present application.

23 Firstly, there is no dispute that the Plaintiff is the registered proprietor of “Lowery” in her capacity as Executrix of the Estate of the late Verdun John Irvine. As a result of orders made by Cohen J on 14 October 1994, the widow of the late Verdun John Irvine, Enid Ruth Irvine, was granted a life interest in “Lowery”. Cohen J did not grant to the Defendant any occupancy of “Lowery”. Between 1994 and 29 June 2002, Enid Ruth Irvine and the Defendant used “Lowery” for agricultural purposes.

24 Secondly, upon the death of Enid Ruth Irvine on 29 June 2002, her life interest in “Lowery” ended. Although the Defendant remained in occupation of that property for a period with the consent of the Plaintiff, that consent had clearly ended by January 2004. The Defendant is a beneficiary as to 45% of the residue of the estate of his late father, but that status does not give rise to any legal entitlement to occupy “Lowery”.

25 Thirdly, the Plaintiff, as registered proprietor of “Lowery”, wishes to take possession of the property and prepare it for sale at public auction. “Lowery” is the principal asset remaining in the Estate of the late Verdun John Irvine. The Plaintiff, pursuant to her obligations of Executrix of the Estate, wishes to sell the property and distribute the proceeds of sale to the beneficiaries of the Estate. The Plaintiff’s desire is consistent with her obligation, as Executrix, to sell “Lowery” as soon as a fair price can be obtained to enable distribution of the proceeds amongst the beneficiaries.

26 Fourthly, as was conceded by Mr Young at the hearing before me, the Defendant does not assert a claim to indefinite occupation of “Lowery”. Insofar as the Defendant asserts an ongoing right to occupy the property, it appears to be based upon his claim that the Plaintiff has not fulfilled certain duties cast upon her in her role as Executrix pursuant to the orders of Cohen J in other proceedings. In particular, the Defendant asserts that there has been a failure to file accounts with respect to the Estate. The Plaintiff submits that she has complied with her obligations under s.85(1B) Wills Probate and Administration Act 1898. The Defendant further asserts that certain payments, which ought to have been made pursuant to orders made by Cohen J, have not been made. The Plaintiff responds that, until “Lowery” is sold and the Estate is put into funds as a result, these payments cannot be made.

27 Ms Cohen, for the Plaintiff, submits that the Defendant’s grievances concerning aspects of compliance with the orders made by Cohen J in other proceedings do not constitute a lawful basis for the Defendant to retain possession of “Lowery”. The Plaintiff submits that, whatever remedies the Defendant might possibly have in this respect, none of them include a basis for resisting the present claim for possession. Ms Cohen further submits that the process of mediation, which applies to the Equity Division proceedings, is unrelated to the present Common Law Division proceedings. Whatever course the Plaintiff may take in relation to the Equity Division proceedings, Ms Cohen contends that the issue is entirely extraneous to the present claim for possession.

28 The Defendant submits that he wishes to mediate the claim for possession of “Lowery”. There is evidence before me of failed discussions between the parties concerning the possible purchase of “Lowery” by the Defendant from the Estate. During the hearing before me on 5 April 2005, I raised with Counsel the utility of mediation and allowed time for the parties to consider their positions and provide instructions. Upon resumption, I was informed by Ms Cohen that, from the Plaintiff’s perspective, there was no point in mediation given that all three beneficiaries – the Plaintiff, the Defendant and Robert John Irvine – wished to purchase “Lowery” (but, given the history of ill-feeling within the family, presumably not jointly). In written submissions, the Defendant continued to press for mediation. Given the history of the litigation, however, I consider that the appropriate course is to proceed to determine the present application.

29 Mr Young, for the Defendant, submits that the Plaintiff’s present application, in essence, is for summary judgment under Pt 13 r 2 Supreme Court Rules. I agree with this characterisation of the Plaintiff’s application. I approach the application upon the basis that a very clear case is required before summary judgment is granted and that the power to order summary judgment should be sparingly employed: Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125 at 129; Webster v Lampard (1993) 177 CLR 598 at 602-603; Cosmos E-Commerce Pty Limited v Bidwell & Associates Pty Limited [2005] NSWCA 81 at paragraphs 37-38.

30 I accept the submissions made by Counsel for the Plaintiff. In my view, the Defence filed on 23 March 2005 does not disclose a triable defence to the claim for possession. Nor does the Cross Claim failed on 31 March 2005 disclose a triable claim for continued possession of the land by the Defendant.

31 Mr Young submits that there is no evidence given by the Plaintiff or by some responsible person that, in the belief of the person giving the evidence, the Defendant has no defence to a claim and that, accordingly, Pt 13 r 2(1)(b) Supreme Court Rules has not been satisfied. In reply, Ms Cohen submits that the absence of a defence is apparent on the pleadings and that, in any event, if the court is satisfied that there is no defence to the claim, a technical non-compliance with the rule will not necessarily justify a refusal of the claim: Long Keys Cove Pty Limited v Silkdale Pty Limited (Court of Appeal, 19 December 1991, BC91010317). In Long Keys, Sheller JA (Priestley and Meagher JJA agreeing) said at page 9:

“It would be quite extraordinary if the Court, having listened to every argument that the wit of ingenious counsel could advance to show that there was an arguable defence and having come to the conclusion that there was none, must refuse the application for summary judgment because of a failure to comply with Pt 13 r 2(1)(b). As Vaughan Williams LJ pointed out in Symon and Co v Palmer’s Stores (1903) Ltd [1912] 1 KB 259 at 264 provisions such as those contained in Pt 13 r 2 are salutary provisions for the purpose of preventing a defendant, who knows perfectly well that he owes the sum claimed, postponing the time of payment, and putting the plaintiff to further expense in a litigation which ought never to have taken place. To refuse an application for summary judgment because of the form of the affidavit in a case where the existence of an arguable defence has been fully investigated and there is found to be none uses the rule to defeat the purpose that it is intended to achieve; cf Les Fils Dreyfus et Cie Societe Anonyme v Clarke (1958) 1 WLR 300 particularly at 307. In my opinion the appellant fails on this point.”

32 In Cosmos E-Commerce Pty Ltd v Bidwell & Associates Pty Ltd, above, Pearlman AJA (Hodgson and Ipp JJA agreeing) said at paragraph 47, with respect to the District Court Rules equivalent of Pt 13 r 2(1)(b) Supreme Court Rules:

“Part 11A r 2(1)(b) simply requires that there be evidence given of the belief. I would not hold that the rule precludes inferring the requisite belief from the evidence furnished by the plaintiff or other responsible person. The precise form of the evidence is not the critical point of the rule. What is required is the requisite belief, and in my opinion that can be established by an inference properly drawn from evidence furnished by the plaintiff or other responsible person.”

33 I consider that there is evidence in the Plaintiff’s affidavits which permits an inference to be drawn, and I do so infer, that the Plaintiff believes that the Defendant has no defence to the claim. Further, upon examination of the pleadings and the affidavits and after consideration of arguments advanced by Counsel, I conclude that there is no triable defence to the Plaintiff’s claim for possession.

34 The Defendant also contended:

(a) that the present proceedings for possession of “Lowery” are a form of abuse of process by the Plaintiff which had been brought for an improper purpose: Flower v Hart (1999) 163 ALR 744; Reynolds v Reynolds (1977) 2 NSWLR 295;

(b) that the Plaintiff has failed to establish grounds for vacant possession of “Lowery” ;

(c) that it would be unjust to order possession or immediate possession, so as to exclude the Defendant from “Lowery” having regard to all the circumstances.

35 I reject these submissions. The Plaintiff seeks possession of “Lowery” so that she may fulfil her obligations as Executrix of the Estate of the late Verdun John Irvine by submitting the property for sale at public auction in an effort to achieve the best sale price. In the unfortunate circumstances where the Plaintiff and Defendant appear locked in dispute on a number of fronts, the sale of “Lowery” by public auction appears to be a justifiable and appropriate discharge of the Plaintiff’s responsibilities as Executrix. In these circumstances, I consider that no separate foundation needs to be established for obtaining vacant possession of the property prior to sale.

Conclusion

36 It is now approaching 13 years since the death of Verdun John Irvine and nearly three years since the death of Enid Ruth Irvine. The Plaintiff is the registered proprietor of “Lowery” and wishes to sell the property for the best possible price in discharge of her obligations as Executrix of the Estate of Verdun John Irvine, so that the proceeds of the sale may be distributed to the beneficiaries. The Defendant has no present lawful entitlement to remain in occupation of “Lowery”. The Plaintiff has required him to leave the property. The Defendant remains in occupation of the property. The Defendant has continued to operate “Lowery” for his own benefit and not for the benefit of the Estate. The other beneficiaries are being deprived of the Estate. Insofar as the Defendant has grievances with the Plaintiff reflected in other proceedings, past and present, none of these matters gives rise to a triable defence to the Plaintiff’s claim for possession of “Lowery”.

37 Insofar as there are practical steps which the Defendant will need to take to vacate “Lowery”, given his use of the property for agricultural purposes over a number of years, it seems to me that this may be met by allowance of a reasonable period before he is required to surrender possession of the property to the Plaintiff. At the hearing, Counsel for the Plaintiff proposed a period of about 25 days for this purpose. In my view, a period of five weeks from the date of judgment being handed down by me is reasonable. In reaching this view, I have regard to the fact that the Defendant has been on notice since at least January 2004, if not earlier, that he would be required to leave the property so that it may be sold to allow distribution of the proceeds to the beneficiaries of the estate. He has been on notice since 25 February 2004 that he should desist from any agricultural use of “Lowery”.

38 I am satisfied that the Plaintiff has demonstrated an entitlement to relief sought in the Amended Notice of Motion. I make the following orders:

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

(b) the Plaintiff is to have leave to issue a writ of possession with respect to “Lowery” for execution no sooner than 8 July 2005;

(c) 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;

(d) the Defendant’s Notice of Motion of 31 March 2005 is dismissed;

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

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