Dowling v Irvine

The Application for Possession 22 Despite the protracted and somewhat complex history set out above, a limited number of matters appear to be critical to the resolution of the present application. 23 Firstly, there is no dispute that the Plaintiff is the registered proprietor of "Lowery" in her capacity as Executrix of the Estate of the late Verdun John Irvine. As a result of orders made by Cohen J on 14 October 1994, the widow of the late Verdun John Irvine, Enid Ruth Irvine, was granted a life interest in "Lowery". Cohen J did not grant to the Defendant any occupancy of "Lowery". Between 1994 and 29 June 2002, Enid Ruth Irvine and the Defendant used "Lowery" for agricultural purposes. 24 Secondly, upon the death of Enid Ruth Irvine on 29 June 2002, her life interest in "Lowery" ended. Although the Defendant remained in occupation of that property for a period with the consent of the Plaintiff, that consent had clearly ended by January 2004. The Defendant is a beneficiary as to 45% of the residue of the estate of his late father, but that status does not give rise to any legal entitlement to occupy "Lowery". 25 Thirdly, the Plaintiff, as registered proprietor of "Lowery", wishes to take possession of the property and prepare it for sale at public auction. "Lowery" is the principal asset remaining in the Estate of the late Verdun John Irvine. The Plaintiff, pursuant to her obligations of Executrix of the Estate, wishes to sell the property and distribute the proceeds of sale to the beneficiaries of the Estate. The Plaintiff's desire is consistent with her obligation, as Executrix, to sell "Lowery" as soon as a fair price can be obtained to enable distribution of the proceeds amongst the beneficiaries. 26 Fourthly, as was conceded by Mr Young at the hearing before me, the Defendant does not assert a claim to indefinite occupation of "Lowery". Insofar as the Defendant asserts an ongoing right to occupy the property, it appears to be based upon his claim that the Plaintiff has not fulfilled certain duties cast upon her in her role as Executrix pursuant to the orders of Cohen J in other proceedings. In particular, the Defendant asserts that there has been a failure to file accounts with respect to the Estate. The Plaintiff submits that she has complied with her obligations under s.85(1B) Wills Probate and Administration Act 1898. The Defendant further asserts that certain payments, which ought to have been made pursuant to orders made by Cohen J, have not been made. The Plaintiff responds that, until "Lowery" is sold and the Estate is put into funds as a result, these payments cannot be made. 27 Ms Cohen, for the Plaintiff, submits that the Defendant's grievances concerning aspects of compliance with the orders made by Cohen J in other proceedings do not constitute a lawful basis for the Defendant to retain possession of "Lowery". The Plaintiff submits that, whatever remedies the Defendant might possibly have in this respect, none of them include a basis for resisting the present claim for possession. Ms Cohen further submits that the process of mediation, which applies to the Equity Division proceedings, is unrelated to the present Common Law Division proceedings. Whatever course the Plaintiff may take in relation to the Equity Division proceedings, Ms Cohen contends that the issue is entirely extraneous to the present claim for possession. 28 The Defendant submits that he wishes to mediate the claim for possession of "Lowery". There is evidence before me of failed discussions between the parties concerning the possible purchase of "Lowery" by the Defendant from the Estate. During the hearing before me on 5 April 2005, I raised with Counsel the utility of mediation and allowed time for the parties to consider their positions and provide instructions. Upon resumption, I was informed by Ms Cohen that, from the Plaintiff's perspective, there was no point in mediation given that all three beneficiaries - the Plaintiff, the Defendant and Robert John Irvine - wished to purchase "Lowery" (but, given the history of ill-feeling within the family, presumably not jointly). In written submissions, the Defendant continued to press for mediation. Given the history of the litigation, however, I consider that the appropriate course is to proceed to determine the present application. 29 Mr Young, for the Defendant, submits that the Plaintiff's present application, in essence, is for summary judgment under Pt 13 r 2 Supreme Court Rules. I agree with this characterisation of the Plaintiff's application. I approach the application upon the basis that a very clear case is required before summary judgment is granted and that the power to order summary judgment should be sparingly employed: Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125 at 129; Webster v Lampard (1993) 177 CLR 598 at 602-603; Cosmos E-Commerce Pty Limited v Bidwell & Associates Pty Limited [2005] NSWCA 81 at paragraphs 37-38. 30 I accept the submissions made by Counsel for the Plaintiff. In my view, the Defence filed on 23 March 2005 does not disclose a triable defence to the claim for possession. Nor does the Cross Claim failed on 31 March 2005 disclose a triable claim for continued possession of the land by the Defendant. 31 Mr Young submits that there is no evidence given by the Plaintiff or by some responsible person that, in the belief of the person giving the evidence, the Defendant has no defence to a claim and that, accordingly, Pt 13 r 2(1)(b) Supreme Court Rules has not been satisfied. In reply, Ms Cohen submits that the absence of a defence is apparent on the pleadings and that, in any event, if the court is satisfied that there is no defence to the claim, a technical non-compliance with the rule will not necessarily justify a refusal of the claim: Long Keys Cove Pty Limited v Silkdale Pty Limited (Court of Appeal, 19 December 1991, BC91010317). In Long Keys, Sheller JA (Priestley and Meagher JJA agreeing) said at page 9: "It would be quite extraordinary if the Court, having listened to every argument that the wit of ingenious counsel could advance to show that there was an arguable defence and having come to the conclusion that there was none, must refuse the application for summary judgment because of a failure to comply with Pt 13 r 2(1)(b). As Vaughan Williams LJ pointed out in Symon and Co v Palmer's Stores (1903) Ltd [1912] 1 KB 259 at 264 provisions such as those contained in Pt 13 r 2 are salutary provisions for the purpose of preventing a defendant, who knows perfectly well that he owes the sum claimed, postponing the time of payment, and putting the plaintiff to further expense in a litigation which ought never to have taken place. To refuse an application for summary judgment because of the form of the affidavit in a case where the existence of an arguable defence has been fully investigated and there is found to be none uses the rule to defeat the purpose that it is intended to achieve; cf Les Fils Dreyfus et Cie Societe Anonyme v Clarke (1958) 1 WLR 300 particularly at 307. In my opinion the appellant fails on this point." 32 In Cosmos E-Commerce Pty Ltd v Bidwell & Associates Pty Ltd, above, Pearlman AJA (Hodgson and Ipp JJA agreeing) said at paragraph 47, with respect to the District Court Rules equivalent of Pt 13 r 2(1)(b) Supreme Court Rules: "Part 11A r 2(1)(b) simply requires that there be evidence given of the belief. I would not hold that the rule precludes inferring the requisite belief from the evidence furnished by the plaintiff or other responsible person. The precise form of the evidence is not the critical point of the rule. What is required is the requisite belief, and in my opinion that can be established by an inference properly drawn from evidence furnished by the plaintiff or other responsible person." 33 I consider that there is evidence in the Plaintiff's affidavits which permits an inference to be drawn, and I do so infer, that the Plaintiff believes that the Defendant has no defence to the claim. Further, upon examination of the pleadings and the affidavits and after consideration of arguments advanced by Counsel, I conclude that there is no triable defence to the Plaintiff's claim for possession. 34 The Defendant also contended: