Thompson v Thompson

[2001] VSC 146

SUPREME COURT OF VICTORIA
PRACTICE COURT	Not Restricted

No. 5170 of 2001

KELVIN GEORGE THOMPSON (AS TRUSTEE OF THE ESTATE OF NANCY GOURLAY THOMPSON)	Plaintiff
v.
IRENE MAY THOMPSON	Defendant

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 MAY 2001
DATE OF JUDGMENT:	7 MAY 2001
CASE MAY BE CITED AS:	THOMPSON v. THOMPSON
MEDIUM NEUTRAL CITATION:	[2001] VSC 146

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms. C. Sparke	Secombs
For the Defendant	In Person

HIS HONOUR:

1. Following upon the death of her husband, George Edwin Thompson on 24 August 1962, his widow, Nancy Gourlay Thompson became the registered proprietor of the property at 62 Soudan Road, West Footscray being the land more particularly described in Certificate of Title 5510, folio 941.

1. By her last will made 28 May 1984, Nancy Thompson appointed her son, Kelvin George Thompson, to be executor of her will and trustee of her estate and conferred upon her son, Victor Thompson, the right to reside in her property at 62 Soudan Road, West Footscray, "for so long as he shall desire on the condition that he pay all regular recurring out-goings relating to that property and maintain the property in fair and reasonable condition."  the will then provided that her estate was to go to her children equally. 

1. Nancy Thompson died on 7 April 1994.  Accordingly, Victor Thompson's right to occupy the property commenced on that date.  On 31 May 1994 probate of Nancy Thompson's will was granted to the present plaintiff, Kelvin George Thompson.

1. On 9 March 2000, Victor Thompson married the defendant, Irene May Thompson and not unexpectedly, Mrs Thompson took up occupation of the land with her husband.  Victor Thompson died on 26 November 2000.

1. On 5 March 2001, Kelvin George Thompson, as trustee of the estate of Nancy Thompson served a notice to vacate on Irene Thompson.  Irene Thompson has refused to vacate the property and on 2 April 2001 Kevin Thompson caused an originating motion for recovery of land under Order 53 of the Rules of the Court to be filed in the court.  It is that originating motion which is now before me.

1. The regrettable fact in this case, so far as Irene Thompson is concerned, is that Victor Thompson had no more than a life interest in the property.  That life interest expired when he died on 26 November 2000.  In my opinion, nothing which Victor Thompson or the defendant did either prior to or since the death of Victor Thompson gave Mrs Irene Thompson any legal interest in the property.

1. In that situation, it is my opinion that as trustee of the estate of Nancy Gourlay Thompson, the plaintiff is now entitled to possession of the property.

1. Accordingly, I order that the plaintiff recover possession of the land described in the originating motion as 62 Soudan Road, West Footscray in the State of Victoria being the land described in Certificate of Title volume 5510, folio 941.  There is no reason at all why the costs of the proceeding should not follow the event and accordingly I order that the defendant pay the plaintiff's costs of the proceedings including any reserved costs.

1. I am, of course, more than conscious of the hardship that this order will cause to Mrs Irene Thompson.  In the circumstances I order, therefore, that the order be stayed until 30 June 2001.  I direct that this order be prepared by the solicitors for the plaintiff and brought to me within 48 hours for authentication.

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