NSW Trustee and Guardian v Gale
[2013] NSWSC 1880
•13 December 2013
Supreme Court
New South Wales
Medium Neutral Citation: NSW Trustee and Guardian v Gale [2013] NSWSC 1880 Hearing dates: 13 December 2013 Decision date: 13 December 2013 Jurisdiction: Common Law Before: Davies J Decision: 1. Defence of 22 November 2013 struck out.
2. Judgment for the Plaintiff for possession of the whole of the land contained in folio identifier 718/801739 known as 34 Debra Ann Drive, Bateau Bay, NSW.
3. Any writ of execution to enforce the judgment of the Court is not to be executed before the 7th of February 2014.
4. Defendant to pay the Plaintiff's costs of the proceedings.
Catchwords: REAL PROPERTY - possession of land - claim by executor - occupied by one of two residuary beneficiaries - need to sell property to administer the estate - no defence disclosed - judgment for possession Category: Interlocutory applications Parties: NSW Trustee and Guardian (Plaintiff)
Lesley Joy Gale (Defendant)Representation: Counsel:
J Johnson (Plaintiff)
In person (Defendant)
Solicitors:
ProActive Legal Pty Ltd (Plaintiff)
In person (Defendant)
File Number(s): 2013/324941
Judgment
These proceedings commenced on the 28th of October 2013 by the NSW Trustee and Guardian who is the executor to the estate of the late Patricia Eve Gale. The deceased died on 13 October 2012. The proceedings seek possession of a property at 34 Debra Ann Drive Gateau Bay. That property is the principal asset in Patricia Gale's estate. The residuary beneficiaries are the two daughters of the deceased.
The Defendant and her husband reside at the property. There is a Defence filed on the 22nd of November 2013 by Ms Lesley Joy Gale, who is the daughter of the deceased, and her husband Matthew William Ayres. The defence says this:
1. We have forthcoming several payments from insurance and superannuation funds to cover the debt.
2. We are occupiers legally of the property contained in folio identifier 718/801739 being lot 718 in deposited plan 801739 known as 34 Debra Ann Drive Bateau Bay.
Ms Gale has appeared this morning. I have not been able to ascertain what the debt is that is referred to in the defence. However, she has suggested that she has applied to her superannuation fund to release monies to her in the hope that she may be able to purchase the property. That would not in itself provide any defence to the claim for possession as the Plaintiff is undoubtedly entitled to obtain possession of the property so that the estate can properly be administered.
Under the terms of the will the property does not pass only to the Defendant in the proceedings.
I am satisfied from inquiries I have made from the Defendant that there is no defence to the claim that is made. In those circumstances, the Defence should be struck out and an order made for the Plaintiff to have possession of the property.
The Plaintiff first made demand for the property by letter of 8 February 2013 and subsequently by letter of 24 July 2013.
In July 2013 the Defendant advised an officer of the Plaintiff that some monies were needed to assist her and her family in securing alternative accommodation. On 1 August 2013 an advance of her entitlement in the estate of $750 was made by the Plaintiff for that purpose.
The Defendant, however, has not vacated the premises. She says that she resides there with her daughters and they have nowhere else to go because they have not managed to find alternative accommodation.
There is no evidence before me of the efforts that have been made in that regard. However, having regard to the time of the year I consider it would be appropriate to stay execution on any writ of possession to 7 February 2014.
The orders that I make therefore are that the defence of 22 November 2013 is struck out. There will be judgment for the Plaintiff for possession of the whole of the land contained in folio identifier 718/801739 known as 34 Debra Ann Drive Bateau Bay NSW. Any writ of execution to enforce the judgment of the Court is not to be executed before the 7th of February 2014. The Defendant is to pay the Plaintiff's costs of the proceedings.
**********
Decision last updated: 18 December 2013
0
0
0