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Sariban v Pocock; Pocock v Peipman

Sariban v Pocock; Pocock v Peipman

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Case Copied 24 May 2018 81 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Sariban v Pocock; Pocock v Peipman [2018] NSWSC 724
Hearing dates: 16 – 17 April 2018
Date of orders: 24 May 2018
Decision date: 24 May 2018
Jurisdiction: Equity
Before: Hallen J
Decision:
In proceedings 2016/382014, the Court:

(a) Orders that the Plaintiff’s Summons be dismissed.

In proceedings 2017/180094, the Court:

(a) Orders that judgment be entered for the Plaintiff for possession of the Ryde property, being the whole of the land comprised in Certificate of Title Folio Identifier XXXX.

(b) Orders that the Defendant vacate possession of the Ryde property, being the whole of the land comprised in Certificate of Title Folio Identifier XXXX, within 6 weeks of the date of these orders.

(c) Orders that the Plaintiff have leave to issue a writ of possession in respect of the whole of the land comprised in Certificate of Title Folio Identifier XXXX forthwith.

(d) Orders that the writ of possession not be executed until the day after 6 weeks of the date of these orders.

In both matters, the Court:
(a) Orders that the argument as to costs be stood over to a convenient date to the parties and to the Court to be arranged when these reasons are published.
Catchwords:
SUCCESSION – FAMILY PROVISION – The Plaintiff, an adult child of the deceased, makes a claim for a family provision order – No dispute as to the Plaintiff’s eligibility as a child of the deceased – The Defendant is also an adult child of the deceased and one of the executors named in the Will to whom Probate granted –– Modest estate in value, principally comprising deceased’s interest in real property – No provision made for Plaintiff – Whether family provision order should be made, and if so, the nature and quantum of the provision to be made – No order for provision made
REAL PROPERTY - Possession of land sought by executor to whom Probate of deceased estate granted – Self-represented Defendant to whom Probate not granted in sole possession of whole of the property in which deceased had one-third interest - Matters raised by Defendant relate to claim for trust by deceased’s contribution to repayment of mortgage when husband died – No such claim made by the deceased during her lifetime - No defence to claim for possession - Plaintiff entitled to judgment - Writ of possession of land ordered – Short stay on execution of writ of possession ordered
Legislation Cited: Administration of Estates Act 1954 (NSW)
Civil Procedure Act 2005 (NSW)
Compensation to Relatives Act 1897-1953 (NSW)
Family Provision Act 1982 (NSW)
Probate and Administration Act 1898 (NSW)
Real Property Act 1900-1956 (NSW)
Sheriff Act 2005 (NSW)
Succession Act 2006 (NSW)
Trustee Act 1925 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Wills, Probate and Administration Act 1898 (NSW)
Cases Cited: Alexander v Jansson [2010] NSWCA 176
Alexander v Perpetual Trustees WA Ltd (2004) 216 CLR 109; [2004] HCA 7
Andrew v Andrew (2012) 81 NSWLR…

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: [2018] NSWSC 724
Decision Date: 24 May 2018

CaseChat Overview and Summary

The case before the court involved two parties, Sariban and Pocock, both of whom were adult children of the deceased. The dispute centred around the deceased's estate, which consisted primarily of their interest in real property, and the lack of provision made for Sariban in the deceased's will. Pocock, who was also an executor of the will, was in possession of the property despite not being granted probate. Sariban sought a family provision order, arguing that despite there being no dispute about her eligibility, she was not provided for in the will. The legal issues for the court to determine were whether a family provision order should be made in favour of Sariban and, if so, what the nature and quantum of that provision should be.

The court examined the evidence and arguments presented by both parties. The deceased's estate was modest in value, and Pocock did not contest the claim for possession of the property. However, Pocock raised matters relating to a claim for a trust based on the deceased's contribution to the repayment of a mortgage when the deceased's husband passed away, a claim that was never made during the deceased's lifetime. The court found that there was no defence to Sariban's claim for possession of the property. Consequently, the court held that Sariban was entitled to a judgment in her favour, and a writ of possession was ordered for the land. Additionally, the court granted a short stay on the execution of the writ of possession to allow for further consideration of the broader estate matters.

Orders