Harkin v Harkin

[2022] NSWSC 1212

Supreme Court

New South Wales

Medium Neutral Citation:

Harkin v Harkin [2022] NSWSC 1212

Hearing dates:

5 September 2022

Date of orders:

5 September 2022

Decision date:

09 September 2022

Jurisdiction:

Equity - Duty List

Before:

Meek J

Decision:

Notice of motion dismissed.

Catchwords:

REAL PROPERTY — Application by owner of one-third share as tenant in common for possession of land and leave to issue but stay for a period a writ of execution — Motion in substance an application for summary judgment for part of final relief sought in statement of claim — Motion dismissed

CIVIL PROCEDURE — Application for summary judgment — A party who seeks judgment for possession of property should ordinarily provide the Court as part of the evidence in support of the application with a copy of a title search for the property at least so the Court is aware of potentially any other relevant interests that are recorded or noted on the register

REAL PROPERTY — Co-ownership — effect of an order under s 66G Conveyancing Act 1919 (NSW) on the rights of a co-owner

SUCCESSION — Probate — Failure by executrix to administer estate for 5 years — Failure of executrix to lodge transmission application in respect of the deceased’s two-third’s share as tenant in common — Executrix alleges plaintiff has inhibited administration

PRACTICE — Estates — Duty of the parties involving contested applications before the Court for relief to assist the Court by providing a copy of the Grant of Probate or Letters of Administration, inventory of property and details of administration

PRACTICE — Duty of the parties to assist the Court to further the overriding purpose of just, quick and cheap resolution of real issues in the proceedings — Parties ought to reflect upon real issues and benefits to be obtained from facilitating the overriding purpose so that ideally the assistance given to the Court, pursuant to the duty to assist, is given willingly not begrudgingly — Parties directed to consult with view to seeking if agreement can be reached to revoke grant and permit appointment of independent administrator

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56

Conveyancing Act 1919 (NSW), ss 66G, 66H, Pt 4 Div 6

Real Property Act 1900 (NSW), ss, 86, 93

Succession Act 2006 (NSW), s 59

Uniform Civil Procedure Rules 2005 (NSW), r 13.1

Cases Cited:

Abbott v Pegler (1980) 1 BPR 9267

Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41

Application of Richard Albarran; Harb v Harb [2010] NSWSC 125

Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27

Biviano v Natoli (1998) 43 NSWLR 695

Bourdales v Carroll; Estate of Diane Holbrook [2007] NSWSC 1057

Chalak v G & G Mikhael Pty Ltd [2022] NSWCA 116

Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87; [1983] HCA 25

Foundas v Arambatzis (No. 3) [2020] NSWCA 87

Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635; [1993] HCA 45

Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306; [1990] HCA 45

Savieri v Brown [2008] NSWSC 1210

Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28

State of New South Wales v Koumdjiev (2005) 63 NSWLR 353; [2005] NSWCA 247

Webster v Lampard (1993) 177 CLR 598; [1993] HCA 57

Texts Cited:

Brendan Edgeworth, Butt’s Land Law (7th ed, 2017, Lawbook Co)

Mason and Handler Succession Law and Practice NSW (LexisNexis, looseleaf)

Shannon Lindsay, Caveats Against Dealings in Australia and New Zealand (1995, Federation Press)

Category:

Procedural rulings

Parties:

Gregory Harkin (Plaintiff)
Colin Harkin (First Defendant)
Sherrie Harkin (Second Defendant)

Representation:

Counsel:
B Flaherty (Plaintiff)
In person (Defendants)
Solicitors:
Ryan & Ryan Lawyers (Plaintiff)

File Number(s):

2022/29582

Judgment

1. HIS HONOUR: On 5 September 2022, I heard a notice of motion filed by the plaintiff on 8 August 2022 (notice of motion) seeking judgment for possession of land at Charmhaven (property) and consequential relief in respect of that including leave to issue a writ of execution (albeit on terms that enforcement of any such writ issued be stayed until after 27 September 2022).

Introduction

2. The application is brought by Gregory Harkin, one of three children of the late Jean Helen Shaw (the deceased) who died on 24 March 2017.

3. Without intending any disrespect, having regard to the fact that there are a number of parties who each bear the surname Harkin, I will refer to the family members by their first names.

4. For the reasons which follow I determined to dismiss the notice of motion and made some ancillary orders to progress the real issues in the proceedings.

5. It is appropriate to set out some background details to assist in understanding the claims in the proceedings and the determinations that I have made.

6. The deceased was married to or partnered to Brian Harkin (Brian) who predeceased her on 8 January 2017.

7. The plaintiff (Greg) is aged 54. Jean had two other children, the second defendant (Sherrie) who is aged 50 and the first defendant (Colin) who is aged 48.

The property

8. The property the subject of the proceedings is currently registered in the name of the deceased as to a two-thirds share and Greg as to a one-third share as tenants in common.

9. It appears that the property was purchased in or about 1990 for $118,000. There are disputed contentions in the statement of claim and Sherrie’s defence regarding how the purchase was funded, in particular, as to the amount of the deposit paid and the amount of mortgage funds.

10. The property is encumbered by a mortgage to the Commonwealth Bank of Australia (CBA).

11. The property according to the evidence adduced on the notice of motion has been valued at approximately $640,000 to $660,000 as at 27 July 2021 and appraised rental value as at 1 June 2021 of $480 to $520 per week.

Statement of claim

12. On 1 February 2022 Greg filed a statement of claim in the Possession List of the Common Law Division of this Court.

13. The statement of claim names Colin as a first defendant and Sherrie as second defendant, and seeks 11 prayers for relief which, apart from a claim for indemnity costs, may be characterised as the following types of relief:

1. judgment for possession of the property;

2. declarations that the property is beneficially owned by the plaintiff essentially as a result of a constructive trust and/or implied or resulting trust;

3. declaratory relief and orders in relation to which Will is the last Will of the deceased; and

4. family provision relief pursuant to s 59 Succession Act 2006 (NSW).

14. On 8 March 2022 Sherrie filed a defence to the statement of claim. No defence appears to have been filed by Colin to the claim.

15. Proceedings on the statement of claim have been listed before Registrars of this Court on seven occasions between 23 March 2022 and 24 August 2022.

16. On 31 August 2022 the matter was listed before Button J as Common Law Duty Judge and transferred to the Equity Division and listed before me for hearing of the notice of motion on 5 September 2022.

Notice of motion

17. On the hearing of the notice of motion Ms B Flaherty of counsel appeared for the plaintiff. Sherrie appeared in Court in person. Her partner Anthony Bridge was also in attendance 'as support for Sherrie'.

18. Colin sought to appear by audio connection.

19. Initially there were some teething issues in relation to Colin being able to secure a satisfactory audio connection. However eventually a satisfactory audio connection was achieved and Colin continued to appear by that means.

20. Ms Flaherty moved on the notice of motion.

21. The notice of motion seeks the following orders:

1. Judgment for the plaintiff for possession of the property.

2. Leave granted to the plaintiff to issue a writ of execution forthwith against the first defendant, and any other occupiers, in respect of the judgment for possession of the property.

3. The NSW Sheriff is not to enforce the writ of execution against the first defendant until any date after 27 September 2022.

4. The plaintiff, first defendant and second defendant do all acts and things necessary to place the property on the market for sale with Aaron Riebelt Real Estate Agent.

5. From the gross proceeds of sale the following deductions are to be made:

1. Real estate agent commission and legal expenses of all parties to the conveyance.

2. The plaintiff and defendants' litigation costs of the within proceedings.

3. The mortgage on the property and any other outstanding outgoings.

4. The balance of the proceeds of sale be held in the trust account of Ryan and Ryan Lawyers pending the outcome of the within proceedings.

6. Liberty to any party to apply, in these proceedings, for consequential and ancillary orders for the purpose of, or with respect to, giving effect to and implementing, the family provision order made in favour of the plaintiff, including, but not limited to, obtaining an order that the property be sold and that the lump sum any interest payable thereon, and any costs subsequently ordered to be paid, be paid out of the nett proceeds of sale.

22. Sherrie and Colin opposed the notice of motion.

23. In support of notice of motion Ms Flaherty read the following affidavits:

1. affidavit of Greg sworn 5 August 2022;

2. affidavit of Anthony John Ryan sworn 8 August 2022 (10 paragraphs); and

3. affidavit of Anthony John Ryan sworn 29 August 2022.

24. After I asked each of Sherrie and Colin whether they had any objections to any parts of the abovementioned affidavits, Sherrie had some objections and Colin had an objection.

25. After discussing with them the particular paragraphs they sought to object to and the basis for the objections eventually each of them did not press the objections to the affidavits and the affidavits were read without objection.

26. Neither Sherrie nor Colin had any affidavit evidence in response to the notice of motion.

27. Nonetheless Sherrie sought to tender a number of documents.

28. Sherrie tendered a bundle of documents which included in summary:

1. title searches for the property dated 2 February 2017 and 26 August 2022;

2. two documents described as Will of the deceased dated 14 February 2017 and an 'informal Will' of the deceased dated 30 September 1996;

3. a CBA statement for the period 1 January 2022 – 30 June 2022;

4. a document described by Sherrie as a "Letter of Distribution" dated 12 February 2007; and

5. a document entitled "Consumer Loan Authority" bearing a "received" stamp dated 7 February 2007.

29. The "Letter of Distribution" is in fact a letter from Colonial to Greg dated 12 February 2007 regarding a fixed rate home loan.

30. The above-mentioned bundle of documents became Ex SH-1.

31. Sherrie tendered, without objection, photographs said to depict the property as at May 2019 and August 2022. The photographs became Ex SH-2.

32. Ms Flaherty tendered a copy of the mortgage in respect of the property showing Greg, Brian and the deceased as mortgagor.

33. The mortgage became Ex GH-1. The memorandum referred to in the mortgage was not tendered.

Some facts and contentions

34. Without attempting to be exhaustive, briefly the following may be noted in respect of the matter. It has been gleaned from the evidence adduced on the notice of motion and from materials appearing in the statement of claim and defence and statements made on the hearing.

Wills of the deceased

35. A Will of the deceased dated 14 February 2017 appoints Sherrie as executrix/trustee and gives the deceased's estate to Sherrie in that capacity to pay the deceased's debts, legacies, funeral and testamentary expenses and, apart from the deceased's jewellery which is given to Sherrie, gives one-third of the residue of the deceased's estate to each of Greg, Colin and Sherrie.

36. There is a form of Will of the deceased signed by the deceased and dated 30 September 1996 but unwitnessed, which relevantly appoints Greg as executor and gives the whole of the deceased’s estate to Greg.

37. In the statement of claim Greg asserts that the Will of the deceased dated 14 February 2017 was made by her without testamentary capacity and in suspicious circumstances.

38. The particulars of suspicious circumstances contain allegations of undue influence. I pause to note that if allegations of undue influence are made in probate proceedings, they should be raised as a separate allegation and not as particulars of allegations of lack of knowledge and approval or suspicious circumstances.

The property and loan details

39. The following details appear from the evidence:

1. the title search of the property as at 2 February 2017 discloses Brian and the deceased as joint tenants as to a two-thirds share holding the property with Greg as to one-third share, as tenants in common.

2. the title search of the property as at 26 August 2022 discloses (as I have noted above) that the deceased is shown as a co-owner of a two-thirds share of the property;

3. the CBA statement being part of Ex SH-1 shows an account in the name of "Estate of the late Mrs Jean Shaw" with an opening balance as at 1 January 2022 in debit of $105,035.64 and a closing balance as at 30 June 2022 in the sum of $107,460.52;

4. the bank statement which discloses Greg, Brian and the deceased as borrowers reveals charges of interest in respect of the loan over the period from 1 January 2022 to 30 June 2022 with no credits or repayments having been made;

5. the letter from Colonial to Greg dated 12 February 2007 confirms a loan of $150,000 funded on 9 February 2007 with certain proceeds in the order of approximately $72,000 being paid out in favour of Perpetual (seemingly in discharge of an earlier mortgage) and a sum of approximately $77,273 being credited to an account;

6. the Consumer Loan Authority bearing a received date of 7 February 2007 discloses Greg, Brian and the deceased as borrowers; and

7. as it currently stands the property is in a state of grave disrepair having regard to photographic evidence being Ex SH-2 as at May 2019 and August 2022 and observations of Mr Ryan made at an attendance at the property (in order to serve Colin with the notice of motion and supporting affidavit) on 8 August 2022.

40. In the statement of claim Greg asserts that occupation of the property has been essentially as follows:

1. Brian lived at the property between 11 October 1990 until his death on 8 January 2017;

2. the deceased lived at the property between 11 October 1990 until her death on 24 March 2017;

3. Greg lived at the property between 1996 and 2019;

4. Greg lived on the property with his partner Rebecca Mitchell for approximately six months in 2019;

5. Greg and Rebecca left the property on or about 14 May 2019 allegedly because of the behaviour of Sherrie and her partner Anthony Bridge; and

6. Colin has resided on the property between late 2017 to date, and on occasions with persons who Greg is unable to identify.

41. The statement of claim asserts that during Colin's occupation of the property with others illegal drug use and antisocial behaviour took place on the property, prompting and requiring the attendance of the New South Wales police force and fire brigade.

Queries raised

42. During the hearing I raised with the parties the question of whether any of the parties had a copy of the grant of probate of the deceased's Will. I also raised with Ms Flaherty the question of what entitlements a co-owner of a one-third share as tenant in common of the property had to relief for judgment for possession of the entirety of the property to exclusion of all others.

43. None of the parties had in affidavits or documentary evidence provided to the Court a copy of the Grant of Probate. I drew this to the attention of the parties after the affidavits were read: T11, 15.

44. I stood the proceedings down until 2:00 PM to permit the parties, if possible, to obtain a copy of the Grant of Probate of the deceased's Will and a copy of the inventory of property, and to permit Ms Flaherty, to locate any authority entitling a co-owner in Greg's position to judgment for possession of the whole of the property to the exclusion of all others: T17.

45. On resumption of the hearing at 2:00 PM, apart from the mortgage which I have referred to above which was tendered by Ms Flaherty, no further evidence was adduced. Ms Flaherty had provided written submissions dated 29 August 2022 and Sherrie had filed written submissions dated 31 August 2022. None of the parties on or after the resumption of the hearing were able to provide me with a copy of the Grant of Probate: T22.

46. I established from all the parties that they did wish for the property to be sold although Sherrie and Colin opposed any distribution of the proceeds of sale of the property pending, as I understood it, final relief in the matter.

47. Ms Flaherty made further oral submissions in support of the relief sought in the notice of motion.

48. She was unable to point me to any statutory provision or caselaw in support of the proposition that a co-owner in Greg's position was entitled to a final order for judgment for possession of the property to the exclusion of all others: T23.

Unadministered estate

49. During the course of the hearing and in submissions I raised a number of questions regarding some aspects of the matter.

50. The application before the Court directly involved the interest of the deceased’s estate. Yet none of the parties had prior to a contested hearing seeking in substance a form of summary judgment (as to which I say more below) had turned their minds to providing the Court with basic details regarding the estate.

51. In particular apart from the parties informing me that the grant of probate had apparently issued on 17 August 2017 (T16, 24) none of the parties as I have mentioned were able to provide me with a copy of the Grant of Probate and/or the inventory of property.

52. Sherrie intimated that a solicitor had assisted in relation to a grant of probate. However, Sherrie stated:

“To be honest, we haven't paid all of the bills so she's not releasing any of the paperwork to go with it.” (T15-16).

53. I asked about transmission of the property. The interchange was as follows:

“HIS HONOUR: Is there some reason why the property hasn't been transferred, why a transmission application hasn't been‑‑

FIRST DEFENDANT: Only that I couldn't afford it at the time.

HIS HONOUR: But it's an estate administration expense.

FIRST DEFENDANT: That's correct, your Honour.” (T16)

54. When I asked about the state of administration Sherrie responded as follows:

“FIRST DEFENDANT: No, it hasn't been administered. In 2017 I engaged GMS to legally obtain the grant of probate which they completed. Greg would not sell the property in 2017, nor would he agree to buying Colin or myself out. GMS Legal were not able to go further with this matter as it only deals with Local Courts and I couldn't afford the 66G to bring it to Court myself.

I engaged a few lawyers at the time including ‑ who was it ‑ Bale Boshev who looked at the matter and thought it would take too long and then I wasn't able to finance it at that time. I also tried to obtain services of Legal Aid and met with them and they also said that this was out of their scope at the time. And in 2019 I went back to trying to negotiate with Greg directly and he was dismissive and the property had ‑ and had the right estate.” (T16-17)

55. I asked parties about details in respect of the assets of the estate. The exchange included the following:

“HIS HONOUR: Does anybody know whether there are other assets of the estate? What if, anything was disclosed in the inventory of property?

FIRST DEFENDANT: No, there's nothing else. It was just mum's jewellery and clothes. That's the only thing. The house was the only thing of value.

HIS HONOUR: Ms Flaherty, if the matter was adjourned till 2pm, would you be able to obtain a copy of the grant of probate and the inventory of property?

FLAHERTY: I can do my best, your Honour.” (T17)

56. If indeed it be the case that the property is the only significant asset of the estate, the administration of the estate ought to have been a straightforward task.

56. Sherrie was unable to give any explanation as to why property had not been transmitted into her name as executrix.

57. Sherrie apart from the above statements asserting a lack of funds was unable to satisfactorily explain to me why the estate had not been able to be administered even to the point of a transmission application in respect of the property for a period of five years. I note the following interaction:

“HIS HONOUR: Are you able to explain to me why you have not arranged to have the property transmitted into your name, as executrix of the estate?

FIRST DEFENDANT: Well, Greg made it very difficult all the way for me to get to this point. He hindered every way and I just didn't have the money at the time to seek solicitor's time to get that done.

HIS HONOUR: It has been a period of five years.

FIRST DEFENDANT: I understand.

HIS HONOUR: A period of five years is really just too long.

FIRST DEFENDANT: I agree.” (T25)

59. Sherrie, apart from the above matters, contends that Greg has the responsibility for attending to payment of the mortgage to the property: T16.

60. Ms Flaherty when I asked about Greg's position confirmed that he was aware that consequent upon his mother's death there was a Will that have been probated, being the Will dated 14 September 2017 which was in the terms that I have indicated above but was unable to give any explanation or offer any evidence as to why it is that in circumstances in which Greg had known that, he had not bought any application to set aside the grant of probate for a period of five years other than he “was desirous of settling the matter”: T27.

Submissions

61. The written submissions on behalf of Greg essentially indicated that he had a genuine concern that Colin's continued occupation of the property would cause damage to the property and/or cause the property to fall into a state of disrepair and sought possession of the property in order to safeguard against that.

62. The submissions asserted that the orders sought in the notice of motion would reduce potential future conflict between the parties and facilitate the just, quick and cheap conduct of the litigation.

63. Ms Flaherty accepted that if judgment for possession were given that it would be appropriate for the Court to order that the writ of execution not be enforced for a period of four weeks to allow Colin to find alternative accommodation.

64. Sherrie's written submissions asserted that:

1. she had been impeded by Greg from executing the Will for the last five years;

2. there was no evidence that the deceased lacks testamentary capacity, none had been put forward nor was there any offer of medical evidence to substantiate the claim;

3. the property is in no worse state than it was in 2019;

4. bank records show that nothing had been paid on the mortgage this year and very little since 2020;

5. part of her defence is that the mortgage was taken out by the plaintiff without the consent of all parties solely for his own benefit and purposes;

6. she is concerned that Greg if there was a sale would seek to tie up proceeds of sale from the property in courts until exhausted by legal costs;

7. Greg had opportunity to dispute the deceased’s Will in 2017 and has not produced any substantive evidence to support his numerous positions (presumably in relation to the Will) taken over the past five years; and

8. the Court should maintain the status quo as the property is currently insured and being maintained in a better condition than it was left in 2019.

65. Despite the commencement of the proceedings in the Possession List of the Common Law Division the real issues in dispute in the proceedings essentially arise out of asserted claims by Greg on the one hand in relation to his entitlement to the entirety of the deceased's interest in the property, seemingly by means of claims of a constructive or resulting trust, entitlement under an earlier Will of the deceased and/or alternatively family provision relief.

66. On the other hand Sherrie and Colin oppose the relief essentially indicating that the deceased's Will dated February 2017 gives them ultimately a share of the property or proceeds of sale of the property and that Greg has done nothing for five years to progress or advance his claims disputing the deceased's Will or to otherwise propound a case for relief that he is entitled to the entirety of the deceased's interest in the property.

67. In oral submissions, Ms Flaherty made reference to my mention during the hearing of the provisions of s 66G Conveyancing Act 1919 (NSW) (Conveyancing Act). Ms Flaherty stated that Greg is concerned about the expenses associated with such an application and the further delays that will be caused by putting on such an application: T22.

68. Ms Flaherty asserted that Greg was entitled to an order for judgment for possession as "a means to an end", that "the estate permits the property to be used for illegal purposes (and) it is unconscionable for them to permit the property to be used in that fashion", and "the granting of judgment for possession in this case would be the court sanctioning his ability to essentially turf out this person who is occupying the property illegally, or without a lawful basis": T 23–24.

Determination

Relief in essence a form of summary judgment application

69. The claim for relief was essentially a form of summary judgment (see r 13.1 Uniform Civil Procedure Rules 2005 (NSW) (UCPR)) insofar as the relief sought in the notice of motion in paragraphs 1 to 3 effectively is the final relief sought in paragraphs 1 to 3 of the statement of claim in the proceedings.

70. A plaintiff may seek to obtain by summary means some or all of final relief sought by it in a number of ways. Usually, the way a plaintiff seeks to do that is by means of a form of summary judgment application pursuant to the provisions of r 13.1 UCPR.

71. The Court must seek to give effect to the overriding purpose when it exercises any power given to it by the Civil Procedure Act 2005 (NSW) (CPA) or by rules of Court and when it interprets any provision of the CPA or of any such rule: s 56(2) CPA.

72. A plaintiff cannot succeed on a summary judgment application unless there is evidence of the facts on which its claim is based. That does not mean, however, that presentation of such evidence is a sufficient condition for the exercise of the power; the evidence must be both sufficient and able to be accepted: Chalak v G & G Mikhael Pty Ltd [2022] NSWCA 116 (Chalak) per Basten AJA at [16] (Ward P at [1] and Simpson AJA at [2] agreeing).

73. It has been said that a court whose jurisdiction is regularly invoked should not decide the issues raised in those proceedings in a summary way except in the clearest of cases. Thus, ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 (Agar v Hyde) per Gaudron, McHugh, Gummow and Hayne JJ at [57].

74. The test to be applied has been expressed in case law in various ways, but all of the expressions which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way: Agar v Hyde at [57].

75. The power to order summary judgment or dismissal should only be exercised with great care and should not be exercised unless it is clear that there is no real question to be tried: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99; [1983] HCA 25. See also Webster v Lampard (1993) 177 CLR 598 at 602–603; [1993] HCA 57 per Mason CJ, Deane and Dawson JJ; Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27 at [46]; Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28 per French CJ and Gummow J at [24].

76. The submissions on behalf of Greg did not grapple with the fact that in substance the application was for summary judgment.

77. For example, the threshold that a form of summary judgment requires there to be no real question to be tried was not satisfied. Clearly, prima facie the deceased is registered proprietor owning a two-thirds share as tenants in common with Greg of the property.

78. Further, there was no evidence, given by Greg “or by some responsible person” of a belief that the defendants have no defence to the claim or part of the claim: r 13.1(1)(b) UCPR. It is clear that such a requirement is no mere technicality but a relevant consideration for the Court in addressing any such claim: Chalak at [17].

79. I note that in Greg’s case no evidence in support of the motion was led regarding a title search of the property. After the affidavit evidence had been read I asked the parties whether there was any such title search. It was only at this point that Sherrie (as a respondent to the application) provided the court with a copy of the title search: T11.

80. An applicant who moves the Court for orders for possession of property should ordinarily provide the Court as part of the evidence in support of the application with a copy of a title search for the property so that the Court has some satisfactory evidence regarding the registered proprietors of the property and details of potentially any other relevant interests that are recorded or noted on the register.

81. That is important because apart from the parties who are before the Court, it may well be that there are other persons, whose interests might be affected by any such order, which interests need to be considered.

Provision of details regarding the estate

82. Very often where proceedings in the Court are simply listed for directions or mention (e.g. in the Succession List) and there is no contested application which the Court is requested to hear, the parties will, without documentary proof, be able to inform the Court of the fact of whether a Grant of Probate or Letters of Administration has issued and orally provide details of that, and of the extent of the estate and any relevant administration aspects.

83. However, where there is a contested application in the context of a notice of motion or application for final relief, ordinarily the Court will require evidence of the above-mentioned matters. This is not mere pedantry, at least for a reason which I will refer to below.

84. As part of the parties’ duty to assist the Court in furthering the overriding purpose of facilitating the just quick and cheap resolution of the real issues in the proceedings, I consider that at the very least where there is a contested interlocutory application over an estate (in particular an application for summary disposal of the proceedings) and part of the relief sought involves having clarity about the deceased’s interest in property the subject of dispute, the title of an executor or administrator to that property and the state of administration of the estate, the parties should be in a position to provide the Court with evidence (usually in documentary form) of basic details regarding the deceased’s estate.

85. I do not propose to be prescriptive regarding what ought to be provided. However, clearly provision of a copy of the Grant of Probate or Letters of Administration and the inventory of property is a starting point.

Entitlement of co-owner to summary possession

86. The right of a beneficiary under a Will in respect of an unadministered estate is a right to have the estate duly administered: e.g. Commissioner of Stamp Duties (Queensland) v Livingstone (1964) 112 CLR 12; Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306 at 311-315; [1990] HCA 45.

87. In cases where a deceased held real property as a tenant in common, the deceased’s share in the property forms part of the deceased’s estate for administration and distribution purposes.

88. Upon the death of a registered proprietor, an executor or administrator may apply in the approved form to the Registrar-General to be registered as proprietor of all or part of the estate or interest of that deceased proprietor: s 93 Real Property Act 1900 (NSW) (Real Property Act).

89. Comment regarding the practical procedures for transmitting assets including real property are addressed in Mason and Handler Succession Law and Practice NSW (LexisNexis, looseleaf) at [8141].

90. Whilst Sherrie as executrix has not transmitted the property into her name, that is a step that could (or at least should) easily be taken by her which would be an answer to Greg’s claim for possession of the entirety of the property. Further, Sherrie as the personal representative of the deceased estate has (in essence) the same right as the deceased to lodge a caveat in respect of the property: see e.g. Shannon Lindsay, Caveats Against Dealings in Australia and New Zealand (1995, Federation Press) at 92.

91. Where two or more persons hold land as tenants in common, each has a proportionate interest in the land. Their interests are not identifiable in any physical sense. The share of the tenant in common is “undivided”, in that though it is a distinct share, it is not physically divided from the other shares. Rather each has an aliquot portion of all those rights that together make up ownership of the whole. Each has ownership of his or her own share only, not of the whole. In this way the title of the property is distributed amongst them all: Brendan Edgeworth, Butt’s Land Law (7^th ed, 2017, Lawbook Co) (Butt’s Land Law) at 238 [6.20].

92. Unless the co-owners have agreed otherwise, each co-owner is entitled to occupy the whole property, along with any other co-owner who chooses to do so: Butt’sLand Law at 257 [6.300]; Savieri v Brown [2008] NSWSC 1210 per White J (as his Honour then was) at [47].

93. In State of New South Wales v Koumdjiev (2005) 63 NSWLR 353; [2005] NSWCA 247 Hodgson JA (Beazley JA and Hislop J agreeing) at [32] stated:

“It is clear that each tenant in common is entitled to possession of the property, and to the use and enjoyment of it in a proper manner. If one tenant in common excludes the other from the property, the latter has a remedy in action for trespass; and if one tenant in common takes more than its share of income or other benefits produced from the property, the other may have an action for an account: Jacobs v. Seward (1872) LR 5HL 464, Bull v. Bull [1955] 1 QB 235. However, there appears to be no direct remedy available to one tenant in common on the basis that the other is making use of the property, which does not go so far as to exclude the former and cannot be made the subject of an action for an account, but nevertheless is excessive and unreasonably restricts the former’s use and enjoyment of the property. In such a case, it appears that the only remedy would be to compel a sale of the property.”

94. Sometimes there are circumstances in which an occupying co-owner might be wrongfully excluded or “ousted” from exercising a right of occupation and in such circumstances, depending on the facts, there may be certain courses of action in relation to possession or other remedies available to the excluded co-owner. The law in this regard was considered by the Court of Appeal in Biviano v Natoli (1998) 43 NSWLR 695.

95. The submissions on behalf of Greg did not address or refer to me any caselaw regarding ouster nor other legal basis for demonstrating that a co-owner of a one-third share as tenant in common of property with a deceased in an unadministered estate was entitled to judgment for possession for the entirety of the property and to be given the controlling conduct any such sale of the property (with directions that the other parties assist).

96. None of the above caselaw that I have referred to above suggests that a tenant in common with a one-third share is entitled to a summary judgment for possession of the entirety of the property against the executrix of the estate of a deceased, where the deceased is registered as tenants in common of a two-thirds share - albeit that the executrix has not yet transmitted the deceased share of the property into the executrix’s name.

97. A further problem facing Greg as the plaintiff is that even if he were able to obtain some form of judgment for possession of the property such an order would lack practical utility in the context in which he seeks to sell the property. He would be in no position to convey or sell the interest of the estate in the property.

98. Ordinarily, where property is co‑owned and a co-owner seeks a sale of the property, absent agreement between the co-owners as to a regime for sale an application is made to appoint trustees for sale pursuant to statutory provisions e.g. s 66G Conveyancing Act.

99. The terms of s 66G of the Conveyancing Act in the context of the provisions of Division 6 of Part 4 Conveyancing Act have the effect that order under s 66G operates to transform a co-owner’s beneficial interest in the property into the right to see the trust for sale performed and to a share of the net proceeds of sale in accordance with their beneficial interests and subject to an account in equity: Foundas v Arambatzis (No. 3) [2020] NSWCA 87 (Foundas) per White JA at [7]-[11] (Bell P and Basten JA at [1]-[2] agreeing) citing Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635; [1993] HCA 45 per Deane, Dawson and Gaudron JJ at 657; Abbott v Pegler (1980) 1 BPR 9267 at 9270 per Powell J; Application of Richard Albarran; Harb v Harb [2010] NSWSC 125 at [15]-[19] (Brereton J).

100. Once an order under s 66G is made the co-owners no longer have a right to possession against the trustees for sale. The effect of s 66G(7)(b) Conveyancing Act is that a co-owner’s legal title to the land as co-owner, preserved by s 86(2) of the Real Property Act, no longer supports a right to possession as against the trustees for sale: Foundas at [11], [15].

101. The structure of the provisions is to place into the hands of independent trustees control of the process of sale rather than one part co-owner who has no proven entitlement to the whole of the property seeking to control the entire process.

102. Nonetheless, the statutory provisions provide for trustees appointed under the provisions of Division 6 of Part 4 Conveyancing Act to consult those persons (who are aged 18 or above and not under a disability) who are beneficially interested in the income of the property as to their wishes prior to sale: s 66H.

103. Whilst it is understandable that Greg did not wish to incur costs associated with appointment of trustees for sale, ordinarily where co-owners dispute over entitlement to administer or manage property and have control of sale of property often the Court considers it cheaper in the long run to have an independent person appointed administer this estate: e.g. Bourdales v Carroll; Estate of Diane Holbrook [2007] NSWSC 1057 at [10] (a case in which there were competing claimants for administration).

104. In a sense, the costs associated with an independent administrator being appointed is the price the parties pay for being unable to agree on or trust one another in relation to a regime for administration or sale of the property.

105. Ms Flaherty did belatedly seek leave to amend the application for relief under s 66G Conveyancing Act: T26. However, that was essentially at the conclusion of the hearing and entirely without notice to the defendants.

Case management

106. It is clear that for there to be resolution of the real issues in dispute in the proceedings that the proceedings should be case managed within the Succession List of the Equity Division.

107. In due course that will need to occur promptly.

108. Parties to civil proceedings is under a duty to assist the Court to further the overriding purpose of the CPA and rules of court to facilitate the just, quick and cheap resolution of the real issues in the proceedings. To that effect they must participate in the processes of the Court directed to that purpose: s 56(1) & (3) CPA.

109. The effectiveness of the parties’ participation in that regard will be proportionate to their underlying preparedness to focus on the real issues.

106. Ideally, the parties themselves should come to the realisation that it is ultimately in their interests to streamline litigation in accordance with s 56(1) & (3) CPA. Parties, including self-represented litigants, ought to reflect upon real issues and benefits to be obtained from assisting the overriding purpose so that ideally the assistance they give to the Court is assistance given willingly not begrudgingly.

107. I raised for the parties’ consideration the need to address the fact that the estate had not been administered for the past five years. I indicated that a possibility was for the Grant of Probate to Sherrie to be revoked with the appointment of an independent administrator to be agreed upon by the parties.

108. I directed the parties’ attention to three solicitors in the Central Coast area with specialist accreditation in Wills and Estates who might potentially be considered for appointment as an independent administrator for the estate.

109. I made it clear to the parties that I was not directing them to agree but rather directing them to consult with a view to see whether they could reach any such agreement.

110. In the above circumstances, I dismissed the notice of motion and made directions (as below) with a view to giving the parties a very short period of opportunity to see whether there could be agreement reached upon revocation of the Grant of Probate to Sherrie and the appointment of an independent administrator.

111. The real issues in dispute between the parties have been left unresolved with inadequate attention by the parties to apply appropriate mechanisms to resolve the impasses between them since the deceased's death in 2017.

112. The purpose of the direction, as is evident from what I have mentioned above, was to facilitate some progression towards the estate of the deceased being administered in a way to permit the claims of Greg and the defence at least of Sherrie to be efficiently dealt with in a manner consistent with s 56(1) & (3) CPA.

113. The orders I made were as follows:

1. Dismiss the Notice of Motion filed 8 August 2022.

2. Direct the parties to consult with one another with a view as to whether they can agree of the Grant of Probate appointing the first defendant being revoked and an independent administrator appointed.

3. Direct the parties to advise by email to Associate of Meek J by 4:00pm on Thursday, 8 September 2022 if they have been able to agree on the appointment of an independent administrator of the estate and if so the orders they seek to be made.

4. Stand proceedings over to Friday, 9 September 2022 at 10:00am for mention before the Equity Duty Judge.

118. On 8 September 2022 in accordance with my direction, Mr Ryan, the solicitor for Greg at 3:34 PM sent to my Associate an email notification, copied to Sherrie and Colin, that with respect to order 3 above the parties have not been able to reach agreement on revocation of the Grant of Probate and the appointment of an independent administrator.

119. Subsequent to that email at 3:44 PM Sherrie sent to my Associate a letter copied to Mr Ryan, which in its first-line confirmed the above but went on to make other submissions. I have not had regard to those subsequent submissions. Further, Sherrie at 4:50 PM sent to my Associate a copy of the Grant of Probate said to have been requested by me.

120. The request made by me for a copy of the Grant of Probate was made during the hearing and prior to making the orders which I made.

121. I briefly note the following. First, the Grant of Probate is dated 27 June 2017 which is contrary to the date that I was informed of during the hearing. Secondly, the inventory of property attached to the Grant of Probate records that there is a debt owed to the deceased’s estate by Greg in the sum of $114,690.60. That is also contrary to the position I had been informed of during the hearing.

122. The above simply reinforces what I have stated above regarding the assistance the Court expects from parties in contested hearings in providing the Court with accurate evidence (usually in documentary form) of basic details regarding the deceased’s estate such as a copy of the Grant of Probate and inventory of property.

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Decision last updated: 13 September 2022