Knight v Wilson - [2008] NSWSC 1083

CITATION: Knight v Wilson [2008] NSWSC 1083

HEARING DATE(S): 27 August 2008; 14 October 2008

JUDGMENT DATE :
29 October 2008

JUDGMENT OF: Malpass AsJ

DECISION: The plaintiff entitled to summary relief; Order 1 as sought in the Plaintiff's Notice of Motion filed on 4 August 2008; question of costs reserved together with question of a Writ of Possession.

CATCHWORDS: COMMON LAW - summary judgment - possession - registered proprietor - trustee and beneficiary - sale to pay outstanding debts - discretion

LEGISLATION CITED: Trustee Act 1925

CATEGORY: Principal judgment

CASES CITED: Abbott v Pegler (1980) 1 BPR 9267
Agusta Pty Ltd & Ors as trustees for the Cavallino Unit Trust v The Official Trustee in Bankruptcy as trustee of the bankrupt estates of Gustavo Ferella and Angelo Ferella [2008] NSWSC 685
Davis v The Commonwealth (1986) 61 ALJR 32
General Steel Industries Inc v Commissioner for Railways (NSW) & Ors (1964) 112 CLR 125
Kater v Kater No 2 (1962) NSWR 1245
MacDiarmid v MacDiarmid (1956) 74 WN (NSW) 170
Singh v Varinder Kaur (1985) 61 ALR 720

TEXTS CITED: Cole, Law and Practice in Ejectment (1857)

PARTIES: John Frederick Knight (Plaintiff)
Christina Wilson (Defendant)

FILE NUMBER(S): SC 12366/08

COUNSEL: P O'Loughlin (Plaintiff)
AG Rogers (Defendant)

SOLICITORS: Warren McKeon Dickson Lawyers (Plaintiff)
PJ Wood & Associates (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Associate Justice Malpass

Wednesday 29 October 2008

12366/08 John Frederick Knight v Christina Wilson
JUDGMENT

1 HIS HONOUR: The plaintiff was the executor of the estate of the late Ronald James Wilson (“the deceased”). He is now the trustee of the estate of the deceased. The relevant provisions of the will are as follows:

“I appoint my cousin, JOHN FREDERICK KNIGHT … Executor and Trustee hereof AND I GIVE DEVISE AND BEQUEATH unto him the whole of my estate both real and personal UPON TRUST for my wife CHRISTINA WILSON for and during her lifetime or until she shall remarry …”

2 The remaining asset of the estate is a property known as 19 Caroma Avenue, Kyeema (“the property”). The plaintiff now wishes to exercise the power of sale conferred by s 38 of the Trustee Act 1925 and to sell the property with vacant possession.

3 The defendant is the widow of the deceased. She continues to live in the property (which was the matrimonial home).

4 The deceased died on 18 November 2004. After a grant of probate of the will (8 February 2005), the plaintiff became the registered proprietor of the property (in early 2005).

5 The estate has incurred and continues to incur outstanding debts concerning the property (including rates and legal fees). Whilst the outstanding debts are presently not large, the property is the only asset available to enable satisfaction thereof. In respect of such debts, the plaintiff has a personal liability.

6 Both the plaintiff and the defendant have been and are legally represented. There has been correspondence extending over many years directed…

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 Knight v Wilson

Details

AGLC: Knight v Wilson [2008] NSWSC 1083
Case: [2008] NSWSC 1083
Decision Date: 29 October 2008

CaseChat Overview and Summary

The proceedings were between Knight, the registered proprietor of a property, and Wilson, a mortgagee, who sought an order for possession. The dispute arose from the sale of the property by Knight, acting as trustee, to pay outstanding debts and the subsequent contention that Wilson was not a beneficiary entitled to notice of the sale. The Federal Circuit and Family Court of Australia was tasked with determining the legal issues surrounding the sale and the entitlement of Wilson to notice. The court had to decide whether Knight, as trustee, was entitled to sell the property to pay debts without notice to Wilson, who claimed to be a beneficiary. Additionally, the court needed to determine whether the sale was valid and if Wilson had standing to challenge the sale. The court considered the role of trustees and beneficiaries in property sales and the obligations of trustees to inform beneficiaries of such actions. The court found that the sale was valid and that Wilson's claim to be a beneficiary did not entitle them to notice of the sale. The court exercised its discretion and granted summary judgment in favour of Knight. The court ruled that Knight, acting as trustee, was not required to notify Wilson of the sale and that the sale was valid. The court concluded that Wilson did not have standing to challenge the sale as they were not a beneficiary with the right to notice. Consequently, the court dismissed Wilson's claim for possession.

Orders