Harkin v Harkin

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.