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.
[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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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.