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…

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 Harkin v Harkin

Details

AGLC: Harkin v Harkin [2022] NSWSC 1212
Case: [2022] NSWSC 1212
Decision Date: 09 September 2022

CaseChat Overview and Summary

In the case of Harkin v Harkin, the applicant sought possession of land and leave to issue but stay for a period a writ of execution. The application was brought by the owner of one-third share as tenant in common against the other two-thirds share co-owners. The dispute arose from the failure of the executrix of the deceased co-owner to administer the estate and lodge a transmission application in respect of the deceased’s share. The executrix claimed that the applicant had inhibited the administration of the estate. The matter was heard in the Supreme Court of New South Wales.

The legal issues before the court included whether the applicant's motion was in substance an application for summary judgment, the duty of the parties to provide necessary documents to assist the court, and the effect of an order under section 66G of the Conveyancing Act 1919 (NSW) on the rights of a co-owner. The court had to determine if the applicant's application was properly supported by evidence, specifically whether a title search was provided to highlight any other interests in the property. Additionally, the court considered the executrix's duty to administer the estate and the implications of her failure to do so.

The court dismissed the applicant’s motion, noting that it was in substance an application for summary judgment for part of the final relief sought in the statement of claim. The court emphasised the importance of providing a title search to highlight any other interests in the property, and the parties’ duty to assist the court in resolving the real issues quickly and cheaply. The court further found that the executrix had failed to comply with her duty to administer the estate and lodge the transmission application. The court directed the parties to consult with a view to seeking to revoke the grant and permit the appointment of an independent administrator.

No final orders were made by the court in this instance, as the matter was directed for further consultation between the parties.

Orders