Grant v Grant; Grant v Grant (No. 4) - [2022] NSWSC 106

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Grant v Grant; Grant v Grant (No. 4) [2022] NSWSC 106
Hearing dates: 3, 11 February 2022
Date of orders: 11 February 2022
Decision date: 14 February 2022
Jurisdiction: Equity
Before: Slattery J
Decision:
The plaintiff appointed as administrator of the estate of the deceased except with respect to the sale of the Killcare property. A separate administrator, Mr Dornan appointed as administrator of the estate for the sale of the Killcare property. Orders made for the sale of the Killcare property. Judgment for possession of the Killcare property entered against the first defendant and in favour of the administrator for the sale of the Killcare property.

Catchwords:
SUCCESSION – administration of a deceased estate – consequential orders – in earlier judgments in these proceedings the second defendant, the registered proprietor of certain real estate (the Killcare property) was found to hold that real estate on trust for a deceased estate represented by the plaintiff as administrator ad litem – the Killcare property is occupied by the first defendant – the plaintiff seeks permanent appointment as the administrator of the estate and seeks that an independent solicitor be appointed as an administrator with respect to the sale of the Killcare property – defendants object to this course – the first defendant not present at the hearing – whether the first defendant has adequate notice of the hearing – whether these appointments as administrators should be made – what order should be made with respect to terminating the occupation of the first defendant at the Killcare property – what other ancillary orders should be made.
INJUNCTION – mandatory injunction – plaintiff claims mandatory injunction to require the first defendant to vacate the Killcare property – first defendant recalcitrant in complying with the Court’s orders – foreseeable that she may not comply with a mandatory injunction – whether judgment for possession should be given with a writ for possession to issue to be executed by the sheriff, to reduce the prospect of breaches of the peace and eliminate the possibility of contempt of the court’s orders.

Legislation Cited:
Probate and Administration Act, 1898, s 73.
Conveyancing Act 1919, s 66G
Civil Procedure Act 2005, ss 56 and 57
Uniform Civil Procedure Rules (NSW) 2005, r 7.10

Cases Cited:
Grant v Grant [2021] NSWCA 181
Grant v Grant; Grant v Grant (No 2) [2020] NSWSC 1288
Grant v Grant; Grant v Grant (No 3) [2021] NSWSC 1
Taunton v Taunton [2019] NSWSC 1513

Category: Consequential orders
Parties:
In proceedings 2017/316190 ("the estate recovery proceedings"):

Representative of the Estate of Alan Grant: Seth Grant
First Defendant: Nerez Grant
Second Defendant: Kashaya Grant

In proceedings 2018/139174 (“the family provision proceedings”):
Plaintiff: Nerez Grant
Executor of Gwynneth Grant’s estate: Seth Grant
Representation:
Counsel: L. Ellison SC for the executor: Seth Grant

Solicitors:
For the Estate in the Estate Recovery proceedings and for Gwynneth Grant’s Estate in the Family Provision Proceedings: Chantelle Tabone, Teece Hodgson &…

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: [2022] NSWSC 106
Decision Date: 14 February 2022

CaseChat Overview and Summary

In the matter of Grant v Grant; Grant v Grant (No. 4), the dispute involves the administration of a deceased estate, specifically concerning the Killcare property. The plaintiff, as the administrator ad litem of the deceased estate, seeks to be permanently appointed as the administrator of the estate and also requests the appointment of an independent solicitor to administer the sale of the Killcare property. The property is currently occupied by the first defendant, who objects to the plaintiff’s appointments and the proposed sale. The second defendant, who holds the property on trust for the deceased estate, does not contest the plaintiff’s permanent appointment as administrator.

The central legal issues before the court were whether the appointments of the plaintiff as the permanent administrator and the independent solicitor as an administrator for the sale should be made, and if so, what orders should be given regarding the termination of the first defendant’s occupation of the Killcare property. Additionally, the court had to determine whether the first defendant had adequate notice of the hearing, and if a mandatory injunction should be granted to compel the first defendant to vacate the property, or if a judgment for possession should be made to ensure compliance.

The court determined that the plaintiff should be appointed as the permanent administrator of the estate, and an independent solicitor should be appointed to administer the sale of the Killcare property. The court found that the first defendant had sufficient notice of the hearing. However, due to the first defendant’s history of non-compliance with the court’s orders, the court opted not to grant a mandatory injunction. Instead, it issued a judgment for possession with a writ for possession to be executed by the sheriff, aiming to reduce the likelihood of breaches of the peace and contempt of court. This decision ensures that the property can be sold without further delay or conflict.

Orders