NSW Trustee and Guardian v Schneider - [2011] NSWSC 424

Supreme Court

New South Wales

Medium Neutral Citation: NSW Trustee and Guardian v Colin Edward James Schneider [2011] NSWSC 424
Hearing dates: Tuesday, 29 March 2011
Decision date: 29 March 2011
Jurisdiction: Equity Division - Duty List
Before: Brereton J
Decision:
Judgment for plaintiff for possession of land

Catchwords: REAL PROPERTY - Remedies available to Court of Equity - testatrix devises real property to trustees upon certain trusts - son has life estate - grandnephew has remainder interest - grandnephew's vested remainder interest takes effect on son's death - grandnephew in possession of property - trustee seeks to exercise power of sale under will - declaratory relief and order for vacant possession sought by trustee - jurisdiction of Court of Equity to issue writ of possession - Court of Equity has jurisdiction to grant most appropriate remedy to vindicate right established -defendant in occupation of property - mandatory injunction only enforceable in contempt proceedings - proceedings for possession attended by procedural constraints protective of rights of persons in possession - possession most appropriate remedy.
PRACTICE AND PROCEDURE - Summons does not seek possession - court obliged to give judgment as case requires regardless of relief sought in originating process - judgment for possession granted.
Legislation Cited: (NSW) Civil Procedure Act 2005, s 90(1), s 104
(NSW) Equity Act 1901, s 16
(NSW) Supreme Court Act 1970
(NSW) Uniform Civil Procedure Rules 2005, r 6.8, r 36.1, r 36.8, r 39.1, r 39.3
Cases Cited: Farrell v Mulroney [1978] 1 NSWLR 221
Goodson v Richardson (1874) LR9 ChApp 221
Hawdon v Kahn (1920) 37 WN (NSW) 131.
Kerr v Sheriff of New South Wales (1996) 9 BPR 16,215
Moreland v Richardson (1856) 22 Beav 596
National Commercial Banking Corporation of Australia Ltd v MRM Holdings (1983) 3 BPR 9339
Category: Principal judgment
Parties: NSW Trustee & Guardian (plaintiff)
Colin Edward James Schneider (defendant)
Representation: Counsel:
Mr C A Vindin (plaintiff)
Solicitors:
Crown Solicitor (plaintiff)

File Number(s): 2011/71596

Judgment ( ex tempore )

HIS HONOUR: By summons filed on 4 March 2011, the plaintiff NSW Trustee and Guardian, which is the trustee of certain trusts created under the Will of the late Beatrice May Morgan, claims the following relief:

1. A declaration that the Defendant and any person claiming through him has no present right to occupy the land in property identifier A/XXXXX X known as XX Cypress Street, Evans Head, New South Wales ("the property").

2. A declaration that the Plaintiff is entitled to act on the request of the NSW Trustee & Guardian on behalf of the life tenant of the property, Athol George Morgan, to sell the property and purchase a substitute residence.

3. An order that the Defendant and any other person in occupation of the property give vacant possession to the Plaintiff within 14 days of the making of these orders.

4. An order that the question of damages for trespass and/or unlawful occupation of the property be referred to an Associate Justice of the Court.

5.…

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: [2011] NSWSC 424
Decision Date: 29 March 2011

CaseChat Overview and Summary

In the matter of NSW Trustee and Guardian v Schneider, the dispute involved the interpretation and enforcement of a will concerning the disposition of real property. The son, the life tenant, had been in possession of the property, while the grandnephew held a vested remainder interest, which would become effective upon the son's death. The trustees sought to exercise a power of sale under the will and applied for declaratory relief and an order for vacant possession. The central legal issues revolved around the appropriate remedy the Court of Equity should grant to enforce the rights established by the will, particularly whether a writ of possession was available, and the procedural constraints surrounding possession orders.

The court held that the Court of Equity had jurisdiction to grant the most appropriate remedy to vindicate the established rights under the will. It noted that the grandnephew's vested remainder interest was not contingent upon any condition, and the trustees, as the absolute owners of the property, could exercise the power of sale. The court further determined that, while a mandatory injunction could only be enforced in contempt proceedings, a writ of possession was a suitable remedy in this context. The procedural constraints of possession proceedings were acknowledged, but the court found them protective of the possessor's rights rather than an impediment to enforcing the established rights. Given that the summons did not specifically seek possession, the court was obliged to give judgment as the case required, which led to the grant of judgment for possession.

The final orders of the court mandated that the son vacate the property and that the trustees proceed with the sale of the property in accordance with the terms of the will. This decision underscores the Court of Equity's role in ensuring that the rights established by a will are upheld, even when the possessor of the property contests the trustees' actions.

Orders