NSW Trustee and Guardian v Michael Reading - [2020] NSWSC 1831

Supreme Court

New South Wales

Medium Neutral Citation: NSW Trustee and Guardian v Michael Reading [2020] NSWSC 1831
Hearing dates: 15 December 2020
Date of orders: 15 December 2020
Decision date: 15 December 2020
Jurisdiction: Common Law
Before: Lonergan J
Decision:
(1) Pursuant to rule 28.2 of the UCPR the plaintiff’s claim for possession set out in the Statement of Claim and the issues raised in the Defence are to be tried separately and prior to the remainder of the proceedings.
(2) The parties are at liberty to approach the Civil List Manager for allocation of a 1 to 2 day hearing date early in 2021.
(3) The proceedings are listed for directions before Lonergan J at 9:30am on Tuesday 15 February 2021 to make orders regarding preparation of court books and submissions.
(4) Liberty to apply on 3 days notice.

Catchwords:
POSSESSION – separate question – whether claim for possession appropriate where will provides for life estate – whether the gift has adeemed or failed

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Category: Procedural and other rulings
Parties: NSW Trustee and Guardian (Plaintiff)
Michael Reading (Defendant)
Representation:
Counsel:
A Hill (Defendant)
Solicitors:
ProActive Legal Lawyers (Plaintiff)
Dakin Law (Defendant)

File Number(s): 2020/201826
Publication restriction: Nil

Judgment

By Statement of Claim filed on 8 July 2020, the plaintiff, the New South Wales Trustee and Guardian, seeks judgment for possession of the whole of the land contained in folio identifier xxxxxx, being Lot 3, Section 4 in DPxxxx, and known as 24 Dinoga Street, Bingara, New South Wales. The plaintiff also seeks an order that the defendant pay the plaintiff’s costs.
The defendant is one of the offspring of the deceased, Peter John Reading, who died on 25 December 2017.
The Statement of Claim pleads that letters of administration with the will annexed were granted to the plaintiff in March 2019 on the basis that a Brenda Adeline McManus, who had been named as executor, renounced probate.
The plaintiff, who has at the last two directions hearings before me been represented by Mr Johnson, solicitor, has expressed a concern that is also mentioned in detail in the Statement of Claim that, although there is an argument that the will of the deceased grants a type of personal right of residence to the defendant, the property is not habitable and does not comply with building, health and safety standards and requires significant renovation, repairs, and maintenance.
The Statement of Claim pleads, and Mr Johnson emphasises, that the estate is a small estate and simply does not have sufficient funds to enable the plaintiff to make the property habitable.
The Statement of Claim also pleads that the gift to the defendant of a personal right of residence in the property has adeemed or failed.
On 6 January 2020, prior to these proceedings being commenced, a letter was sent by the plaintiff to the defendant giving notice requiring the defendant to vacate the property within fourteen days. The…

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.

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Details

Case: [2020] NSWSC 1831
Decision Date: 15 December 2020

CaseChat Overview and Summary

In this case, the NSW Trustee and Guardian sought to enforce a direction from the executor of the estate of the late John Reading, which instructed that the property be sold. Michael Reading, the son of the deceased, opposed this action on the basis that he was entitled to a life estate in the property. The dispute was heard in the Supreme Court of New South Wales. The central issue before the court was whether a claim for possession of the property was appropriate when the will provided for a life estate. Additionally, the court needed to determine whether the gift had adeemed or failed, considering the circumstances of the case.

The court considered the language of the will and the principles of equity. It was noted that the will provided for a life estate in the property for Michael Reading, and there were no terms in the will that would result in the life estate failing or adeeming. The court held that since the life estate remained valid and in force, a claim for possession was not appropriate. The court reasoned that the direction to sell the property was inconsistent with the terms of the will and could not be enforced. The court further held that the gift had not adeemed or failed, as the life estate continued to exist.

As a result, the court ruled in favour of Michael Reading, holding that the claim for possession was not appropriate and that the gift had not adeemed or failed. The executor was directed to refrain from taking any action that would interfere with Michael Reading's life estate. The court ordered that the property remain in Michael Reading's possession until his death, at which point it would vest in the beneficiaries of the estate as per the terms of the will.

Orders