Kaney v Rushton

Case [2017] ACTSC 11


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Kaney v Rushton

Citation:

[2017] ACTSC 11

Hearing Date:

25 November 2016

DecisionDate:

Reasons Date:

25 November 2016

2 February 2017

Before:

Refshauge J

Decision:

1. For the purposes of s 68(2) of the Court Procedures Act 2004 (ACT) that these proceedings be declared to have been validly commenced.

2. Under r 6 of the Court Procedures Rules 2006 (ACT), so much of the Rules be dispensed with as would prevent the making of these orders.

3.   The order made on 14 November 2016 for personal service of the Originating Application dated 15 November 2016 be set aside.

4.   It be noted that it is in the interests of justice to proceed in the absence of the defendant.

5.   That Mark Desmond Kaney as Executor of the Estate of the late Kelli Maree Rushton be declared to be entitled to the possession of the land being Block 13 Section 377 Division of Macarthur, contained in Volume 883 Folio 71, known as 8 Bayley Place, Macarthur, ACT.

6.   It be directed that an enforcement officer enter the premises at 8 Bayley Place, Macarthur, ACT, more precisely described in order 5 and deliver possession of the land and appurtenances to Mark Desmond Kaney.

7.   Ben Anthony Rushton be ordered to pay the costs of Mark Desmond Kaney of execution of the Estate of the late Kellie Maree Rushton of and incidental to these proceedings including the cost of all interlocutory hearings and other attendances.

Catchwords:

ADMINISTRATIVE LAW | ADMINISTRATIVE TRIBUNALS | ACT Civil and Administrative Tribunal | ACAT | orders made by the ACAT | registration of a judgment of the ACAT | enforcement of orders made by the ACAT | powers of the ACAT | “any personal action at law” | enforcement powers of the Magistrates Court | s 22 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) | s 71 of the ACT Civil and Administrative Tribunal Act 2008 (ACT)

PRACTICE AND PROCEDURE | SERVICE OF DOCUMENTS | Informal service | transfer of proceedings | fees associated with the filing of an Originating Application | certainty of actual notice due to no appearance | contempt of an order | s 247 of the Legislation Act 2001 (ACT)

TORTS | TRESPASS | Trespass to land and rights of real property | recovery of land | proof of title

SUCCESSION | WILLS, PROBATE AND ADMINISTRATION | Administration of Estate by executor | family provision | property interests | custody of children | prior Domestic Family Violence Protection Order

Legislation Cited:

ACT Civil and Administrative Tribunal Act 2008 (ACT), ss 15, 16(f), 17, 18, 22, 24, 71

ACT Civil and Administrative Tribunal Amendment Act 2016 (No 2) (ACT), s 4, Sch 1, Pt 1.5
Court Procedures Act 2004 (ACT), s 68(2)
District Court of Western Australia Act 1969 (WA), s 55
Foreign Judgments Act 1991 (Cth), s 6
Leases (Commercial and Retail) Act 2001 (ACT), Div 12.5
Legislation Act 2001 (ACT),…

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Kaney v Rushton [2017] ACTSC 11
Case
[2017] ACTSC 11
Decision Date

CaseChat Overview and Summary

The dispute in Kaney v Rushton was between Mark Desmond Kaney, as the executor of the estate of the late Kellie Maree Rushton, and Ben Anthony Rushton. The conflict centred around the possession of a piece of land in Macarthur, ACT. The case was heard in the ACT Civil and Administrative Tribunal (ACAT) and subsequently in the Magistrates Court of the ACT. The core issues revolved around the validity of the proceedings, the service of documents, and the enforcement of ACAT orders. Additionally, the case touched upon broader topics such as the powers of the ACAT, the enforcement powers of the Magistrates Court, and the rights to land possession.

The court had to determine if the proceedings were validly commenced despite the informal service of the Originating Application, which was initially ordered to be served personally. Another key issue was whether the proceedings should proceed in the absence of the defendant. Furthermore, the court had to decide on the entitlement of Mark Desmond Kaney to the possession of the disputed land, considering the implications of a prior Domestic Family Violence Protection Order. The court also needed to address the enforcement of the ACAT order and the associated costs.

The court ruled that the proceedings were validly commenced and that the informal service of the Originating Application did not invalidate the proceedings. It was deemed just to proceed in the absence of the defendant, given his lack of appearance and response. The court found in favour of Mark Desmond Kaney, declaring him entitled to the possession of the land in question. An enforcement officer was directed to deliver possession of the land to Mark Desmond Kaney. Lastly, the court ordered Ben Anthony Rushton to pay the costs associated with the execution of the estate and the proceedings.

The final orders of the court included the declaration that the proceedings were validly commenced, the dispensation of certain rules to allow the making of these orders, the setting aside of the order for personal service, the allowance for proceedings in the absence of the defendant, the declaration of Mark Desmond Kaney's entitlement to the possession of the land, the direction for an enforcement officer to deliver possession, and the ordering of Ben Anthony Rushton to pay the costs.

Orders

Orders of the court

1. For the purposes of s 68(2) of the Court Procedures Act 2004 (ACT) that these proceedings be declared to have been validly commenced.

2. Under r 6 of the Court Procedures Rules 2006 (ACT), so much of the Rules be dispensed with as would prevent the making of these orders.

3. The order made on 14 November 2016 for personal service of the Originating Application dated 15 November 2016 be set aside.

4. It be noted that it is in the interests of justice to proceed in the absence of the defendant.

5. That Mark Desmond Kaney as Executor of the Estate of the late Kelli Maree Rushton be declared to be entitled to the possession of the land being Block 13 Section 377 Division of Macarthur, contained in Volume 883 Folio 71, known as 8 Bayley Place, Macarthur, ACT.

6. It be directed that an enforcement officer enter the premises at 8 Bayley Place, Macarthur, ACT, more precisely described in order 5 and deliver possession of the land and appurtenances to Mark Desmond Kaney.

7. Ben Anthony Rushton be ordered to pay the costs of Mark Desmond Kaney of execution of the Estate of the late Kellie Maree Rushton of and incidental to these proceedings including the cost of all interlocutory hearings and other attendances.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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