Pauperis v Pauperis - [2020] NSWSC 1470

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Pauperis v Pauperis [2020] NSWSC 1470
Hearing dates: 2, 3, 8 September 2020
Date of orders: 23 October 2020
Decision date: 23 October 2020
Jurisdiction: Equity
Before: Parker J
Decision:
See [192]-[200]

Catchwords:
SUCCESSION – executors and administrators – rights, powers and duties – duty to realise deceased’s property for the benefit of the estate – deceased had been in possession of real property registered in the name of another person who had died in 1969 – deceased had ceded occupation and control of that property to the person nominated as executor of her will – whether at the date of the deceased’s death the deceased had an entitlement to possessory title forming part of her estate
REAL PROPERTY – possessory title – property in possession of non-owner – non-owner cedes occupation and control to another person – which party entitled to apply for possessory title
EQUITY – fiduciary duties – breach – second limb of Barnes v Addy – whether the wife of an executor who registered possessory title over property belonging to the estate knowingly participated in “dishonest and fraudulent design”

Legislation Cited:
Real Property Act 1900 (NSW), pt 6A, s 42
Trustee Act 1925 (NSW), s 85
Uniform Civil Procedure Rules 2005 (NSW), pt 54

Cases Cited:
Alexander v Perpetual Trustees WA Ltd (2004) 216 CLR 109
Allen v Roughley (1955) 94 CLR 98
Bogdanovic v Koteff (1988) 12 NSWLR 472
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89
Newington v Windeyer (1985) 3 NSWLR 555
Strel v Cordia [2016] NSWSC 1596

Category: Principal judgment
Parties: Ralph Udo Pauperis (Plaintiff)
Kurt Werner Pauperis (First Defendant)
Judith Joy Elwing (Second Defendant)
Representation:
Counsel:
N Allan (Plaintiff)
B Connell (Defendants)
Solicitors:
Jack C Herrald Solicitors (Plaintiff)
Fox & Staniland Lawyers (Defendants)

File Number(s): 2019/65839
Publication restriction: Nil

Judgment

These proceedings concern the estate of Lieselotte Kathe (known as Liese or Lisa) Pauperis, who died in 2012 at the age of about 86. For convenience and without disrespect, in this judgment I refer to members of the deceased’s family by their given names.
The deceased was born in Germany in about 1926 or 1927. There she married Walter Pauperis, who had been born in about 1921. After the Second World War, they migrated to Australia. Together they had three sons: Kurt Werner Pauperis, Ralph Udo Pauperis and John Edgar Pauperis.
This case is unusual. It involves rights flowing from adverse possession of two properties. One is a house in Edward Street Bankstown. The other is a block of vacant land at Sanctuary Point, near Nowra on the south coast. The registered proprietor of both properties is shown as Luise Steigis. But she died as long ago as 1969. She left no will. No-one has ever claimed the properties as her heir.
Following Mrs Steigis’ death, the deceased (or the deceased and her husband Walter) assumed control of the properties (Mrs Steigis was also a German immigrant…

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 Pauperis v Pauperis

Details

AGLC: Pauperis v Pauperis [2020] NSWSC 1470
Case: [2020] NSWSC 1470
Decision Date: 23 October 2020

CaseChat Overview and Summary

In the matter of Pauperis v Pauperis, the dispute before the court involved the interpretation of possessory title rights and the potential breach of fiduciary duties by an executor of a will. The deceased, who had been in possession of real property registered in the name of another person who died in 1969, had ceded occupation and control of that property to the person nominated as executor of her will. The court was required to determine whether at the time of the deceased’s death, she had an entitlement to possessory title forming part of her estate. Additionally, the court needed to assess whether the wife of the executor, who registered possessory title over the property, knowingly participated in a dishonest and fraudulent design, potentially breaching her fiduciary duties under the second limb of Barnes v Addy.

The primary legal issues centred on the interpretation of possessory title, specifically who was entitled to apply for such title when a non-owner had ceded occupation and control to another person. The court had to consider the deceased’s actions and intentions regarding the property and whether her actions constituted a valid claim for possessory title. Furthermore, the court needed to determine if the wife of the executor, who registered the possessory title, had knowingly participated in a dishonest and fraudulent design, thereby breaching her fiduciary duties. This required an examination of her knowledge and intent in the context of the second limb of Barnes v Addy.

The court ruled that the deceased did not have an entitlement to possessory title as she had ceded occupation and control of the property to the executor, thereby relinquishing any possessory rights she might have had. Regarding the wife of the executor, the court found that there was insufficient evidence to establish that she knowingly participated in a dishonest and fraudulent design. The court determined that while the wife may have been aware of the executor’s actions, she did not have the requisite knowledge and intent to breach her fiduciary duties under the second limb of Barnes v Addy.

The court ordered that the executor was entitled to the possessory title over the property and that the wife of the executor was not liable for any breach of fiduciary duty in relation to the registration of the possessory title. The court further directed that the estate proceed with the realisation of the property for the benefit of the estate’s beneficiaries.

Orders