O'Regan v Hellstrom - [2020] NSWSC 16

Supreme Court

New South Wales

Medium Neutral Citation: O’Regan v Hellstrom [2020] NSWSC 16
Hearing dates: 17 December 2019
Date of orders: 17 December 2019
Decision date: 29 January 2020
Jurisdiction: Common Law
Before: Lonergan J
Decision:
(1) An order for the possession of the property situated at and known as 38 Cliff Street, Merimbula, New South Wales, 2548, being the land comprised in folio identifier 12/11/758670.

(2) Leave to issue a writ of possession forthwith.

(3) The respondents are to vacate the property forthwith.

(4) The respondents are to pay the estate of Jeanette Elaine Hellstrom occupation rent in the sum of $270 per week from 29 March 2019 to the date the property is vacated by the residents.

(5) The first and second defendants pay the costs of the plaintiff.
(6) These orders are to be entered forthwith.
Catchwords: CIVIL PROCEDURE – possession proceedings –possession of land – failure of persons to vacate property – expression of “wish” in Will not binding –payment of occupation rent
Legislation Cited: Probate and Administration Act 1898 (NSW), s 44
Cases Cited: Boardman v Phipps [1966] UKHL2
Farrell v Stephenson [2008] NSWC 1350
Hammat v Chapman (1914) SR (NSW) 416
Public Trustee v Bennett [2004] NSWSC 955
Stead v Mellor (1877) 5 Ch D 225
Category: Procedural and other rulings
Parties: Ingrid Maree O’Regan (Plaintiff)
Karen Anne Hellstrom (First Defendant)
William Sharples (Second Defendant)
Liam Sharples (Third Defendant)
Representation:
Counsel:
Solicitors:
Farrar Gesini Dunn (Plaintiff)
David Griffiths Lawyers (Defendants)

File Number(s): 2019/133921
Publication restriction: Nil

Judgment ex tempore

The plaintiff, Ingrid O’Regan, seeks possession of the property known as 38 Cliff Street Merimbula and related orders.
The orders that she seeks are set out in a Statement of Claim filed on 30 April 2019. In addition to an order for possession, leave to issue a writ of possession forthwith is sought, together with an order that the respondent - and this may entail both the first and second respondents, as I understand it - vacate the property forthwith, and that the respondents pay the estate of Jeanette Elaine Hellstrom occupation rent of $270 per week from 15 March 2019 to date, as well as costs.
In terms of a procedural chronology, I should outline what has been occurring in the proceedings as it explains why the matter is listed before me to hear the matter on its merits on the Tuesday before Christmas.
A Defence was filed on 24 July 2019 claiming that the first defendant and another person were appointed together with the plaintiff, executors and trustees by the Will of their mother, the deceased, who died on 24 February 2018. The Defence claims that the plaintiff had obtained probate of the Will in June 2018 without the leave of the first defendant and the other executors.
The issue of content raised in the Defence seems to be reliance on clause 4 of the Will which stated:

“It is my express wish that the residence at 38 Cliff Street, Merimbula not…

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 O'Regan v Hellstrom

Details

AGLC: O'Regan v Hellstrom [2020] NSWSC 16
Case: [2020] NSWSC 16
Decision Date: 29 January 2020

CaseChat Overview and Summary

The case of O'Regan v Hellstrom was heard in the Supreme Court of New South Wales. The primary issue was whether the defendant, Hellstrom, was required to vacate the plaintiff's property despite an expression of his "wish" to remain in the Will of the property's previous owner. The plaintiff, O'Regan, sought possession of the land and the payment of occupation rent from Hellstrom, who had refused to leave the premises.

The central legal issue revolved around the enforceability of Hellstrom's "wish" as expressed in the Will, and whether this constituted a binding agreement or merely an expression of sentiment. The court needed to determine whether such expressions in a Will could be enforced as a contract, or if they were simply non-binding indications of intent that did not have legal effect. Additionally, the court had to consider whether the plaintiff was entitled to occupation rent from Hellstrom for his continued presence on the property.

The court found that the expression of Hellstrom's "wish" in the Will was not binding and did not create an enforceable agreement. The court held that such expressions were not intended to have legal consequences and could not be enforced as a contract. The judge further determined that the plaintiff was entitled to occupation rent from Hellstrom for the period he remained on the property. The court ordered Hellstrom to vacate the premises and to pay occupation rent to the plaintiff from the date of the judgment until the date of his vacating the property.

Orders