Tjen v Bilic

Case [2017] NSWSC 364


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Tjen v Bilic [2017] NSWSC 364
Hearing dates: 6, 7, 8 and 9 March 2017
Date of orders: 06 April 2017
Decision date: 06 April 2017
Jurisdiction:Equity
Before: Hallen J
Decision:

The Court:
(i) Orders, pursuant to UCPR rule 7.10(2)(b) that the Plaintiff be appointed a representative of the deceased person’s estate for the purposes of the proceedings.
(ii) Declares that the deceased has no right title or interest in the Mount Pritchard property, being the whole of the land in (inserting proper title details which are omitted for reasons of privacy).
(iii) Orders that the caveat on the title to the Mount Pritchard property be removed within 14 days.
(iv) Orders that the whole of the Plaintiff’s proceedings otherwise be dismissed.
(v) Orders the Plaintiff to pay the Defendant’s costs of the proceedings.
(vi) Orders that the Plaintiff is to vacate possession of the Mount Pritchard property (inserting proper title details which are omitted for reasons of privacy) on or before the day being 6 months from the date of the orders.
(vii) Grants leave to the Defendant to issue a writ of possession for the Mount Pritchard property on the day being six months and one day from the date of the orders.
(viii) Orders that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005.

Catchwords:

TRUSTS – Transfer of funds by the deceased (the husband of the Plaintiff) to the Defendant contributing towards purchase of a residential property at Mount Pritchard – Nature of the deceased’s interest, if any, in the Mount Pritchard property – Defendant sole registered proprietor – Deceased not registered on title – Whether transfer of funds operated as a gift or a payment of money to acquire a registered interest in the Mount Pritchard property. Whether the Defendant’s interest, or any part thereof, in the Mount Pritchard property was held on a resulting trust for the deceased.

PRACTICE – Commencement of proceedings – Parties – Proceedings commenced seeking declaration of trust in relation to real property in favour of deceased on ground of contribution to the purchase price – No general grant of probate or administration – Chose in action formed part of the estate – Whether Plaintiff had standing to pursue claim as executrix of the deceased’s Will – Whether proceedings a nullity – Consent given by Defendant to the Plaintiff being appointed as the representative of the deceased’s estate so that the proceedings may be determined and the ownership of the Mount Pritchard property clarified without additional cost to the parties.
Legislation Cited: Civil Procedure Act 2005 (NSW)
Contracts Review Act 1980 (NSW)
Conveyancing Act 1919 (NSW)
Evidence Act 1995 (NSW)
NSW Trustee and Guardian Act 2009 (NSW)
Probate and Administration Act 1898 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Anderson v Anderson (No 2) [2013] QSC 73
Anderson v McPherson (No 2) [2012] WASC 19
Calverley…

Continue reading Tjen v Bilic

Sign in free to access the full text

Details
AGLC
Tjen v Bilic [2017] NSWSC 364
Case
[2017] NSWSC 364
Decision Date

CaseChat Overview and Summary

The plaintiff, Tjen, sought a declaration that the defendant, Bilic, held an interest in a residential property at Mount Pritchard on trust for her, as the deceased's executrix. The deceased, who was Tjen's husband, had contributed funds towards the purchase of the property, although he was not registered on the title. The defendant, Bilic, was the sole registered proprietor of the property. The central issue in this case was whether the transfer of funds by the deceased constituted a gift or a payment intended to acquire a registered interest in the property. Additionally, the court had to determine if Bilic's interest in the property, or any part of it, was held on a resulting trust for the deceased.

The court examined whether Tjen had the standing to pursue the claim as the executrix of the deceased's will, given that no general grant of probate or administration had been issued. The court also considered whether the proceedings were a nullity due to the absence of such a grant. However, Bilic consented to Tjen being appointed as the representative of the deceased's estate, allowing the proceedings to proceed without additional costs to the parties. The court found that the transfer of funds by the deceased did not operate as a gift but rather as a payment intended to acquire a registered interest in the property. Consequently, the court held that Bilic held the property on a resulting trust for the deceased, and thus, for Tjen as his executrix.

In light of the findings, the court declared that Bilic held the interest in the Mount Pritchard property on a resulting trust for the deceased, represented by Tjen. The court's decision clarified the ownership of the property and resolved the dispute between the parties. The court's final order declared the trust and directed Bilic to hold the property on trust for Tjen as the deceased's executrix.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.