Knight v Wilson [2008] NSWSC 1083 | Case summary

JUDGMENT 1 HIS HONOUR: The plaintiff was the executor of the estate of the late Ronald James Wilson ("the deceased"). He is now the trustee of the estate of the deceased. The relevant provisions of the will are as follows: "I appoint my cousin, JOHN FREDERICK KNIGHT … Executor and Trustee hereof AND I GIVE DEVISE AND BEQUEATH unto him the whole of my estate both real and personal UPON TRUST for my wife CHRISTINA WILSON for and during her lifetime or until she shall remarry …" 2 The remaining asset of the estate is a property known as 19 Caroma Avenue, Kyeema ("the property"). The plaintiff now wishes to exercise the power of sale conferred by s 38 of the Trustee Act 1925 and to sell the property with vacant possession. 3 The defendant is the widow of the deceased. She continues to live in the property (which was the matrimonial home). 4 The deceased died on 18 November 2004. After a grant of probate of the will (8 February 2005), the plaintiff became the registered proprietor of the property (in early 2005). 5 The estate has incurred and continues to incur outstanding debts concerning the property (including rates and legal fees). Whilst the outstanding debts are presently not large, the property is the only asset available to enable satisfaction thereof. In respect of such debts, the plaintiff has a personal liability. 6 Both the plaintiff and the defendant have been and are legally represented. There has been correspondence extending over many years directed to the problem of resolving outstanding matters. These matters remain unresolved and appear to be intractable (inter alia, promises to pay the rates made by the defendant have not been honoured and the defendants refuses to vacate the property). The plaintiff came to the position that it was necessary to resort to legal proceedings. 7 On 20 May 2008, the plaintiff filed a statement of claim seeking judgment in possession of the property. In a general sense, it pleads the matters that have been earlier mentioned in this judgment. It concedes that the defendant is occupying the property pursuant to the provisions of the will. 8 A defence has been filed by the defendant. Generally speaking, it does not admit the debts or that they have been properly and/or reasonably incurred and the power of sale (paragraphs 2A - 3). It also alleges that she is entitled to remain in occupation of the property pursuant to the terms of the will and that she is under no obligation to vacate the property at the request of the plaintiff (paragraph 4). 9 On 4 August 2008, the plaintiff filed a Notice of Motion seeking summary judgment in respect of the claim for possession. There is an alternative claim seeking the striking out of paragraphs 2A - 4 of the Defence. 10 The Notice of Motion was referred for hearing on 27 August 2008. Whilst the defendant did not appear before the Registrar, counsel appeared before me at 10.00 am and made application for an adjournment. For some years the defendant has given indication of intention to make application under the Family Provisions Act 1982. Hitherto, nothing has been done to pursue that indication. A bundle of documents (Exhibit 1) were tendered to support an indication of intention to immediately commence such proceedings (together with her children who are also occupants of the property). 11 The application for adjournment was rejected. The view was taken that any Family Provisions Act proceedings would not justify the delaying of the application for summary judgment. 12 The hearing proceeded to the stage of submissions. During submissions it was ascertained that there was probably only one potential arguable issue. It concerned the foundation for an entitlement to possession by the plaintiff. Neither counsel was able to put before the Court any authority on the question. Both sought further time to research it. The proceedings were stood over part-heard to a date to be fixed by arrangement with my Associate. 13 It was common ground that the discretionary remedy of summary judgment is one that is only granted in what might be described as, inter alia, clear cases and that the onus rests with the plaintiff (see General Steel Industries Inc v Commissioner for Railways (NSW) & Ors (1964) 112 CLR 125). 14 The proceedings were re-listed for hearing to take place on 14 October 2008. Prior to that time, both counsel provided the Court with written submissions. The written submissions were supplemented by oral argument on the hearing date. The plaintiff relied on a number of additional authorities (including MacDiarmid v MacDiarmid (1956) 74 WN (NSW) 170). 15 The written submissions did not advance the matter much further. The plaintiff has a power of sale pursuant to s 38(1A) of the Trustee Act 1925. There is no dispute that the plaintiff does have such power of sale. When the case was first before the Court, the approach was taken by the plaintiff that this power of sale carried with it a right to possession. It is not now put that the section gives any entitlement to recover possession. 16 The plaintiff advances three arguments. The first is that the defendant merely occupied as a licensee and that her licence has been terminated. The second relies on what was said in MacDiarmid and other authorities. The third relies on the plaintiff's claim for indemnity (see paragraph 35 of Agusta Pty Ltd & Ors as trustees for the Cavallino Unit Trust v The Official Trustee in Bankruptcy as trustee of the bankrupt estates of Gustavo Ferella and Angelo Ferella [2008] NSWSC 685). 17 The first argument is not open on the pleadings. It is not supported by any evidence. It seems to be common ground that no evidence has been placed before the Court concerning the question of the status of the defendant's occupation of the property. There is no evidence of any contractual relationship. Her defence relies on the terms of the will. 18 The second argument looks to the status of the plaintiff as the registered proprietor of the property and the powers had by a registered proprietor to effectively discharge his trust (including his entitlement to maintain an action for possession against a beneficiary in occupation). 19 In Cole, Law and Practice in Ejectment (1857) (288) the following was said: "A person who has the legal estate must prevail in a court of law; and it makes no difference in this respect whether the plaintiff be a trustee for the defendant or not. Roe d. Reade v Reade, 8 TR 118, 121, 122: Goodtitle d. Estwick v Way, 1 TR 735; Keene v Deardon , 8 East, 248; Fenny d. Eastham v Child, 2 M&S 255 ; Doc c. Hughes v Jones, 9 M&W 372; Id 377, Alderson, B; 1 Dowl NS 352, SC. " 20 This passage was applied by Brereton J in MacDiarmid (at 172). It was a case that concerned s 66G of the Conveyancing Act 1919 - 1954. His Honour observed as follows: "… there is nothing in this State to prevent a trustee having the legal estate from evicting a beneficiary with a merely equitable one, unless he is restricted by the contract of occupancy, if any." 21 What was said in Cole and by Brereton J in MacDiarmid was adopted by Manning J in Kater v Kater No 2 (1962) NSWR 1245 and was followed by Powell J (as he then was) in Abbott v Pegler (1980) 1 BPR 9267. 22 It seems to me, that the second argument should be accepted. This gives the plaintiff a prima facie entitlement to summary judgment for possession. In the circumstances, it becomes unnecessary to explore the third argument. 23 There is an issue raised between the parties as to whether the defendant has an interest in the estate as opposed to a life interest in the property. The defendant contends that this question of construction is not one that should be dealt with on a summary basis. 24 It seems to me that what has been seen to be an issue by them is not in fact a real issue in these proceedings (inter alia, by reason of what was pleaded in the Statement of Claim) and can be put aside. 25 The plaintiff has drawn attention of the Court to what was said in Davis v The Commonwealth (1986) 61 ALJR 32 at 722. I observe that Barwick CJ in General Steel at 130 said to the effect that argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of a party is so clearly untenable that it cannot possible succeed. 26 Summary relief is a discretionary remedy. The defendant says that this is one of those cases in which relief should not be granted as a matter of discretion. I do not accept that argument. 27 Counsel for the defendant seems to be unaware of any further evidence that could be put before the Court. At present, there is no factual issue arising from the material. It has been necessary for the plaintiff to bring these proceedings so that outstanding debts (in respect of which he has a personal liability) can be met. If the outstanding rates are not paid, the property may be otherwise at risk of sale. The putting of the proceedings to a full trial would not be in the interests of, inter alia, the defendant (inter alia, her legal costs may substantially reduce her entitlement under the will). In my view, it is in the interests of the parties that the proceedings be disposed of as expeditiously as possible. 28 The defendant has drawn the attention of the Court to Singh v Varinder Kaur (1985) 61 ALR 720 at 722. I have earlier mentioned the onus borne by a party seeking summary relief. It is not disputed that no onus whatsoever is borne by the defendant. In the relevant circumstances of this case, I am satisfied that the plaintiff has discharged the onus of demonstrating a clear case for relief. 29 In these circumstances, it is only necessary to briefly refer to the alternative relief claimed in the Notice of Motion. It was not fully argued. Paragraph 4 of the Defence may have its problems and it may be that it would be futile to grant leave to amend. Paragraphs 2A - 3 have been pleaded in accordance with the pleading rules. However, some abuse of process may be involved (inter alia, by reason of the state of knowledge had by the defendant). By reason of what has been earlier said, these matters need to be taken no further. 30 The plaintiff is entitled to summary relief in respect of his claim for possession. I make Order 1 as sought in the Notice of Motion filed by the plaintiff on 4 August 2008. As requested, I reserve the question of costs together with the question of a Writ of Possession. **********

Knight v Wilson

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (11 paragraphs)

Parties

Cases Cited (4)

Cited By (2)