Flanagan v Flanagan
[2015] NSWSC 697
•3 June 2015
|
New South Wales |
Case Name: | Flanagan v Flanagan |
Medium Neutral Citation: | [2015] NSWSC 697 |
Hearing Date(s): | 3 June 2015 |
Date of Orders: | 3 June 2015 |
Decision Date: | 3 June 2015 |
Jurisdiction: | Common Law |
Before: | Davies J |
Decision: | 1. The Defence of 24 March 2015 is struck out. |
Catchwords: | REAL PROPERTY – possession of land – executors seek order against occupants of estate property – whether arguable defence raised – Defendants subsequently concede possession must be given - whether costs should be payable by Defendants |
Category: | Principal judgment |
Parties: | Raymond John Flanagan, Colin James Flanagan and Douglas Gerrard Flanagan as Trustees of the Estate of the late Ethel Veronica Flanagan (Plaintiffs) |
Representation: | Counsel: |
File Number(s): | 2015/57469 |
JUDGMENT
These proceedings commenced on 24 February 2015. They claim possession of a property at 25 Albion Street, Umina Beach. The Plaintiffs are the executors of the will of the late Ethel Veronica Flanagan, who died on 26 December 2013. The Plaintiffs obtained probate on 14 March 2014.
The property in Albion Street was one of a number of assets of the deceased. At the date of the death of the deceased, and to the present time, the First Defendant has resided in the property. Other evidence indicates that she has resided there for most of her life.
A defence was filed in response to the claim, on 24 March 2015, on behalf of both Defendants. That Defence was in a form which admitted, did not admit or denied various paragraphs of the Statement of Claim. The Defence admitted paragraph 13 as far as the First Defendant was concerned. That was a paragraph that asserted that the Defendants remained in occupation of the property.
The Plaintiffs, by Notice of Motion filed 27 May 2015, ask for an order that the Defence be struck out, and judgment be given for possession of the property.
The matter was sent to me for early judicial directions, and this morning Mr Avery-Williams has appeared on behalf of the Defendants. The parties have settled the proceedings except as to the issue of costs.
It is agreed that the Plaintiffs should be entitled to possession of the property, that the Defence be struck out and that the Defendants have twenty-eight days to vacate the property.
The Notice of Motion had sought, in prayer 3, that the solicitor for the Defendants should pay the Plaintiffs' costs personally. That prayer is no longer pursued. The Plaintiffs seek simply that the Defendants pay the Plaintiffs' costs of the proceedings.
That is resisted by the Defendants, on the basis that there was an arguable defence to the claim. The defence was based on a belief that the First Defendant, at least, had an equitable right to remain on the premises as a result of representations made to her by the deceased. Particular reference was made to paragraphs 6, 14, and 15 of an affidavit of the First Defendant sworn 4 May 2015. The evidence in those paragraphs indicates that the deceased told the First Defendant that she would always be able to live in the property, that she would not have to worry about moving, that she could do what she wanted to with the property in terms of renovations, and that the property would be left to her and a person called Damien.
Mr Avery-Williams properly accepts that there is no evidence demonstrating any detriment from reliance on the representations that were made. He says, nevertheless, that the defence was not an unarguable defence in that regard. It may be noted that no such defence was pleaded despite what appeared in the affidavit to which I have referred.
The fact that an arguable defence may have been raised would not ordinarily prevent an order for costs being made. The Defendants have ultimately agreed possession must be given to the Plaintiffs. It was necessary for the Plaintiffs to commence these proceedings to achieve that result, and in those circumstances the Defendants should pay the Plaintiffs' costs of the proceedings.
The orders that I make are these noting that, other than in relation to the costs order, the orders are by consent:
The Defence of 24 March 2015 is struck out.
There will be judgment for the Plaintiffs for possession of the land comprised in Lot 44 of deposited plan 9263, known as 25 Albion Street, Umina Beach.
Leave to the Plaintiffs to issue a writ of possession to enforce judgment of the Court. Such writ not to be executed before Monday 6 July.
The Defendants are to pay the Plaintiffs' costs of the proceedings.
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