McMerrin v Williams

[2013] WASC 71

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   McMERRIN -v- WILLIAMS [2013] WASC 71

CORAM:   MASTER SANDERSON

HEARD:   6 MARCH 2013

DELIVERED          :   6 MARCH 2013

PUBLISHED           :  6 MARCH 2013

FILE NO/S:   CIV 1290 of 2013

BETWEEN:   LISA JANE McMERRIN as Executrix of the Estate of the Late JACK ARTHUR WILLIAMS

Plaintiff

AND

MARK SEYMORE WILLIAMS by his Guardian Ad Litem THE PUBLIC TRUSTEE (WA)
First Defendant

NAOMI WALLACE
Second Defendant

Catchwords:

Administration of estate - Application by executrix seeking vacant possession of estate property - Turns on own facts

Legislation:

Nil

Result:

Order for possession made

Category:    B

Representation:

Counsel:

Plaintiff:     Mr D V Blades

First Defendant             :     Mr D L Jones

Second Defendant         :     No appearance

Solicitors:

Plaintiff:     Slater & Gordon

First Defendant             :     Public Trustee (WA)

Second Defendant         :     No appearance

Case(s) referred to in judgment(s):

McMerrin v Williams [2012] WASC 400

1. MASTER SANDERSON:  This was the plaintiff's application for summary judgment against the first defendant and judgment in default of appearance against the second defendant.  The plaintiff sought an urgent hearing.  After reading the papers and hearing brief argument I was satisfied the orders sought by the plaintiff ought be made.  I indicated I would publish reasons for my decision.  These are those reasons.

2. The plaintiff is the executrix of the estate of the late Jack Arthur Williams who died on 18 May 2010.  Probate of his last will and testament dated 5 May 2010 was granted to the plaintiff on 30 December 2010.

3. The first defendant is a beneficiary of the deceased's estate and the son of the deceased.  He is a represented person pursuant to an administration order appointing the Public Trustee as his representative.

4. The will of the deceased divided the estate equally between Jason McMerrin and the first defendant, with the first defendant's share held on trust.  Apart from a small amount of cash the only asset of the estate was a property situated at 26 Collier Street, Wembley.  The will of the deceased anticipated this property being sold with the proceeds divided equally between Jason McMerrin and the first defendant.  By orders dated 31 May 2012 I varied the provision made under the will.  The details are not presently relevant; suffice it to say the variation ensured when the Wembley property was sold the proceeds of sale destined for the first defendant would be used to provide him with accommodation.

5. The Wembley property has now been sold under a contract of sale dated 8 December 2012.  Settlement of the sale of the property was scheduled for 15 February 2013.  The first and second defendants who reside in the property have refused to move out.  Failure to settle the property has resulted in the purchaser claiming penalty interest.  The plaintiff brought these proceedings in order to remove the defendants from the premises so that possession could be given to the purchaser.  For reasons which follow there was no choice other than to make the orders sought by the plaintiff.

6. Before detailing the course of dealing between the defendants and the plaintiff a few further background facts should be provided.  The first and second defendants are husband and wife.  Mr Mark Williams is the son of the deceased.  He has resided in the Wembley property for approximately 50 years.  He initially resided in the property with his mother, father and two siblings.  His mother died in August 1991, his sister died in December 1991 and his brother died in 2005.  The second defendant has resided in the property since approximately 1983.  Clearly Mr Mark Williams and the second defendant have a very close affinity with the Wembley property.  It is their home.

7. The evidence shows the Wembley property is in poor condition.  The Public Trustee has obtained a number of reports from building inspectors and is satisfied the property is not suitable for habitation by a person with Mr Williams' disabilities.  However that is not a factor in the decision to sell the property.  The fact is the property has to be sold to give effect to the will of the deceased.  Mr Williams and the second defendant appear to accept that position in principle.  But for reasons which are unexplained they have refused to vacate the premises.

8. The plaintiff has done everything possible to accommodate Mr Williams and the second defendant both in the manner of sale and the time within which they were to vacate the premises.  It is worth tracing through what has occurred.  On 30 March 2011 the plaintiff's solicitors wrote to the Public Trustee saying they wished to sell the property in the course of the administration of the estate.  They asked for vacant possession within 14 days.  They also said Mr Williams' share of the proceeds of sale would be provided to him.  On the same day the solicitors wrote again clarifying the proceeds of the sale of the property due to Mr Williams would in fact be paid to a testamentary trust set up pursuant to the will.

9. The Public Trustee wrote back to the plaintiff's solicitors on 4 April 2011.  The Public Trustee said they considered 14 days notice to be unreasonable.  They gave a date for inspection of the property by the executor.  By letter dated 12 April 2011 the plaintiff's solicitors confirmed 15 April 2011 as the date of inspection.

10. On 21 April 2011 the plaintiff's solicitors wrote to the Public Advocate requiring Mr Williams to deliver up vacant possession of the property by 29 April 2011.  On 27 April 2011 the Public Trustee wrote back advising the Public Advocate was to determine where Mr Williams was to live.  The Public Trustee requested information regarding the funds in the estate available if an interim payment was to be made to enable Mr Williams to find alternative accommodation.  The correspondence also made arrangements for certain property to be removed from the property.

11. On 29 April 2011 the Public Advocate wrote to the plaintiff's solicitors confirming its appointment limited to guardian with authority to 'decide where the represented person is to live, whether permanently or temporarily'.  The letter also advised it was Mr Williams' intention to remain at the property until he was able to purchase a unit.  At that time Mr Williams had on foot a claim under the Inheritance (Family and Dependents Provision) Act 1972 (WA).  The Public Advocate advised Mr Williams intended to await that decision before making any arrangements to move.  The Public Advocate also confirmed it was not its role to identify or source appropriate accommodation for Mr Williams.

12. On 1 May 2011 the plaintiff's solicitors wrote to the Public Trustee advising they had instructions to seek orders for possession of the property as soon as possible.  On 6 May 2011 the plaintiff's solicitors wrote again querying whether the sourcing of alternative accommodation for Mr Williams should be made a priority due to safety reports received.  On 13 May 2011 the Public Trustee wrote to the plaintiff's solicitors confirming Mr Williams was currently looking for alternative accommodation.  On 15 June 2011 the Public Trustee wrote to the plaintiff's solicitors seeking details as to the amount of interim distribution available if Mr Williams was to find alternative accommodation.  On 17 June 2011 the plaintiff's solicitors wrote back to the Public Trustee advising the estate was prepared to make a payment of $8,000 by way of interim distribution which could be used by Mr Williams for the payment of bond and rent.

13. On 21 June 2011 the Public Advocate wrote to the plaintiff's solicitors advising Mr Williams would leave the property and saying a period of 30 days within which to do so was insufficient.  On 24 June 2011 the Public Trustee wrote to the plaintiff's solicitors expressing the opinion Mr Williams should move out of the property subject to him finding suitable alternative accommodation.  In that letter the Public Trustee confirmed a meeting with Mr Williams on 21 June 2011 at which Mr Williams' progress in finding suitable accommodation was discussed.

14. It is worth pausing at this point to note the Public Trustee had reached a positive conclusion that Mr Williams should vacate the property.  This decision was not taken lightly.  The Public Trustee had obtained reports from appropriate building consultants and had discussed the matter with Mr Williams.  No doubt the Public Trustee's views were coloured by the fact the property needed to be sold to give effect to the terms of the will of the deceased.  But the fact remains the Public Trustee concluded the accommodation for Mr Williams at the property was unsatisfactory.

15. The executrix then determined she would seek an order from this court requiring Mr Williams and the second defendant to vacate the property.  That action progressed somewhat slowly but was heard by me on 5 September 2012:  see McMerrin v Williams [2012] WASC 400. I concluded the Wembley property should be sold but it should be sold while Mr Williams and the second defendant remained in residence. Both Mr Williams and the second defendant attended that hearing. In reaching the conclusion I did I was effectively giving effect to their wishes.

16. On 31 October 2012 the plaintiff's solicitor wrote to the Public Trustee seeking access to the property by a real estate agent who could assess the current market value.  The same day the plaintiff's solicitors wrote to the second defendant seeking her permission to allow inspection by an agent.  In a separate letter the plaintiff's solicitors also wrote to the Public Trustee claiming rental for the continued occupation of the premises by Mr Williams and the second defendant.  On 5 November 2012 the plaintiff's solicitors wrote again to the Public Trustee and the second defendant seeking access to the property.  On the same day the Public Trustee wrote back advising inspection could take place on 7 November 2012.

17. On 8 November 2012 the plaintiff's solicitors wrote to the second defendant providing a copy of the report from the real estate agent and advising the property was to be auctioned on 8 December 2012.  The following day the plaintiff's solicitors emailed to the Public Trustee proposed draft auction conditions.

18. On 12 November 2012 the Public Trustee emailed the plaintiff's solicitors.  The Public Trustee confirmed that Mr Williams and the second defendant had agreed:

    •home to be opened on 14 November 2012;

    •agreed to sell the property by way of auction and agreed fees charged;

    •agreed to auction being conducted at the property on 8 December 2012;

    •agreed to sign being placed on the property;

    •agreed that the property be sold with vacant possession; and

    •agreed settlement to take place within 60 days of successful auction.

19. It is important to note that all of these matters were agreed to by Mr Williams and the second defendant.  There was no question of a unilateral decision by the Public Trustee.  This has to be borne firmly in mind.

20. On the same day the second defendant emailed the plaintiff's solicitor confirming the date for the home being open for inspection.  She also mentioned the 60 day settlement period.  Although it is not entirely clear from the correspondence it appears the plaintiff agreed to the 60 day settlement period without objection.

21. The property was duly auctioned on 8 December 2012 and sold.  Settlement was set for 15 February 2013.  On 8 February 2013 the plaintiff's solicitor emailed the Public Trustee requesting confirmation that at settlement vacant possession was to be provided.  The Public Trustee was not in a position to respond.  Mr Williams and the second defendant have simply failed to move out of the property.  They have offered no explanation as to why they have not done so.  It is not clear whether they presently have any other accommodation available to them.

22. On 22 February 2013 these proceedings were launched.

23. It is unnecessary for present purposes to go through the principles applicable to an application for summary judgment.  Suffice it to say judgment will only be given in a clear case.  This is a clear case.  The Public Trustee has acknowledged as much.  It raised no objection to judgment being entered against the first defendant.  The second defendant has not entered an appearance.  She did not appear and was not represented at the hearing of the plaintiff's application for judgment.  But there can be no defence to the claim.  The plaintiff is clearly entitled to the order she seeks.

24. The circumstances of this case are unfortunate.  It is never easy to make an order removing persons from a home they have occupied for many years.  The situation is even worse when one of the persons being evicted is under a disability and it is not clear what alternative accommodation, if any, is available.  But the plaintiff had no choice but to sell the property to give effect to the will.  In doing so they have extended every consideration to Mr Williams and the second defendant.  But the end of the line has been reached.  A third party with no interest in the issues between the plaintiff and the defendants is being kept out of a property to which they have a legal entitlement.  Further, with penalty interest being claimed the estate is suffering financially.

25. The Public Trustee rightly consented to the order for possession.  Doubtless to ensure it was taking a proper course the Public Trustee briefed Mr Jones, a very experienced and able counsel.  He appeared at the hearing of the application.  He had no doubt the order should be made.  Accordingly I ordered Mr Williams and the second defendant to deliver up vacant possession of the property.  A question of costs was raised but that can await another day.  Both the Public Trustee and the second defendant might wish to make submissions in relation to costs.  There was also the question of whether or not the first defendant was liable to the estate for rent during the time he and the second defendant occupied the premises.  That question too should be determined at a later date.