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 orderedLegislation 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…
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- Case
- [2018] NSWSC 724
- Decision Date
CaseChat Overview and Summary
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.
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Evidence
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