The plaintiff, Ingrid O'Regan, seeks possession of the property known as 38 Cliff Street Merimbula and related orders.
The orders that she seeks are set out in a Statement of Claim filed on 30 April 2019. In addition to an order for possession, leave to issue a writ of possession forthwith is sought, together with an order that the respondent - and this may entail both the first and second respondents, as I understand it - vacate the property forthwith, and that the respondents pay the estate of Jeanette Elaine Hellstrom occupation rent of $270 per week from 15 March 2019 to date, as well as costs.
In terms of a procedural chronology, I should outline what has been occurring in the proceedings as it explains why the matter is listed before me to hear the matter on its merits on the Tuesday before Christmas.
A Defence was filed on 24 July 2019 claiming that the first defendant and another person were appointed together with the plaintiff, executors and trustees by the Will of their mother, the deceased, who died on 24 February 2018. The Defence claims that the plaintiff had obtained probate of the Will in June 2018 without the leave of the first defendant and the other executors.
The issue of content raised in the Defence seems to be reliance on clause 4 of the Will which stated:
"It is my express wish that the residence at 38 Cliff Street, Merimbula not be sold by my executors and beneficiaries unless my said executors and beneficiaries are agreeable and concur to the sale of the said property."
The Defence also pleads that the second and third defendants, who are the sons of the first defendant, have occupied the property since 2010 as members of the household of the deceased, and continue to occupy the property. (I understand that more recently, the third defendant has left the premises).
The Defence acknowledges that the plaintiff sent a letter purportedly terminating any licence that it could be said the defendants had to remain on the property on 15 March 2019, but claims that the will of the deceased should have the effect of preventing sale of the property in the absence of consent by the first defendant, and that the letter of 15 March 2019 was in breach of the executor's duties because it was contrary to the terms of the Will.
The Defence was not dealt with on its merits because from the time the proceedings first became managed by the Registrar, and then by me as possessions list judge, it was evident that settlement discussions were taking place between counsel. The matter was listed for directions before the Registrar twice in August and once in September this year, and then came before me on 18 October and 14 November. On each of those occasions, the Court was informed and I accept that the matter was the subject of ongoing negotiations, as would be expected in a matter involving a family estate.
On 14 November 2019 I was informed by counsel that the matter had resolved and that paperwork needed to be prepared.
On 27 November 2019 when the matter was last before me, it became evident that the settlement had not been effected due to, it seems, lack of cooperation on the part of the first defendant. A request was made to list the matter for determination as it was perceived, correctly, that it would be quicker to deal with it that way than to deal with an argument as to whether the Defence should be struck out.
I note the difficulties created for counsel and the solicitor acting on behalf of the defendants. According to the affidavit of David Simon Griffiths dated 16 December 2019 - and I accept as true the contents of that affidavit - the first defendant has simply refused to engage with them since 25 November 2019. Mr Griffiths deposes to having had a conference with the first defendant on that date, discussing the draft documents that will finalise settlement of the matter, as well as a telephone conference that day, but subsequent to that, despite multiple attempts by phone, mail, and text, the first defendant would not respond.
The relevant factual background to the claim by the plaintiff is that in 1987 a will was formalised by the deceased. The deceased died on 24 February 2018. On 4 June 2018, probate was obtained by the plaintiff. The plaintiff is the registered proprietor of the property by virtue of the grant of probate pursuant to the Probate and Administration Act. Tendered before me as part of the affidavit of Ingrid O'Regan affirmed 2 December 2019 is the certificate of title evidencing that position.
The first defendant and her two sons the second and third defendants had been living in the property. On 15 March 2019 the plaintiff terminated the defendants' right to live in the property to the extent that there was in fact any licence to occupy the property, and provided 14 days' notice to vacate.
The first and second defendants have failed to vacate the property, although it does seem the third defendant has left.
The defendants have not paid any rent since the notice to vacate and have not paid any outgoings such as rates. The estate has been paying those outgoings.
There is evidence that a real estate agent has estimated the market rent at $350 per week and a calculation has been made for rent from 29 March to date which comprises part of the claim made by the plaintiff for determination today.
The statement of claim was filed on 30 April 2019 and the Defence filed on 24 July 2019. The proceedings have been managed by the Court, as I have already referred to.
Today Ms Lane of counsel again appears on behalf of the defendants. She points out that her retainer has not been formally terminated. I acknowledge the difficulties Ms Lane has had to navigate in the circumstances. There is no suggestion at all that Ms Lane and her instructing solicitor have done anything other than what is proper and correct to try to bring the proceedings to an appropriate completion.
Ms Lane, in a valiant (and proper) effort to protect her clients' interests to the extent that she can despite their refusal to engage with her or to assist the Court - tendered two medical documents. They indicate that the first defendant, Ms Hellstrom had, following a CT scan, been referred for treatment for advanced breast cancer with an examination in March 2019 to rule out metastatic disease. On the face of the CT report by a Dr Tew, the findings are most in keeping with residual or recurrent breast malignancy.
A report of Dr Malik, medical oncologist, states that he met with the first defendant and her son on 23 August 2019 in Bega. He had apparently initially seen her in Canberra in January 2019 with what he describes as "locally advanced left breast cancer", post-surgery. He noted that she was not having adjuvant chemotherapy and that she was found to have metastatic disease on PET scan.
Dr Malik's report refers to detailed discussions that without further cancer treatment her prognosis could be limited to "only a few months". Dr Malik noted various recommendations as to what ought to occur and concluded that he would be "happy to see her again in a few months if she would like to continue treatment".
Through no fault of counsel, Ms Lane, I do not have any other material before me as to the current medical status of the first defendant.
Ms Catanzariti submitted on behalf of the plaintiff that the defendants' Defence is misconceived. The fact that first defendant was nominated in the Will as one of the executors of the deceased's estate, and accordingly would have the right to apply for probate and the right to be a registered proprietor of the property does not in any way suggest any right at all to remain in the property.
Clearly the evidence shows that the plaintiff is the registered proprietor in her capacity as the executor of the estate. By virtue of the operation of s 44 of the Probate and Administration Act 1898, all of the deceased's real estate vests in and has vested in the plaintiff. The will, which is in evidence before me annexed to the affidavit of the plaintiff does nominate the first defendant, the plaintiff and their sister as executors, but the issue is that the first defendant did not apply for probate, only the plaintiff did. This means probate was not granted to the first defendant and the other sister so the only person entitled to be registered as the registered proprietor is in fact the plaintiff.
First, even if the first defendant was a registered proprietor, she would be holding the property as trustee for the estate. In that role she would have a fiduciary duty to avoid any conflict of interest with other beneficiaries and a duty not to receive a benefit by virtue of her position as a trustee.
Ms Catanzariti cited Boardman v Phipps [1966] UKHL2 in support of that proposition. It seems to me that that proposition is unarguable, and no argument was presented to the contrary.
Secondly, the defendant's claim that clause 4 of the Will is evidence that the deceased did not wish the property sold is not correct. The wish is limited to exactly that and cannot be considered to be anything other than precatory words that express a wish or a hope that is not in any way binding on the executors; Farrell v Stephenson [2008] NSWC 1350 per Young J at 27; Hammat v Chapman (1914) SR (NSW) 416 at 418 to 419 per Harvey J; and Public Trustee v Bennett [2004] NSWSC 955 at 17 per Gazelle citing Stead v Mellor (1877) 5 Ch D 225. Consequently, the executors are not required to retain the property or to obtain the consent of all beneficiaries in the circumstances.
I accept the submissions made by Ms Catanzariti. I am of the view that the relief sought in the statement of claim ought to be granted.
Ms Lane submitted that the medical issues of the first defendant support a submission that this Court ought to consider postponing the right of the plaintiff to approach the registry for a writ of possession and that the Court should consider a delay for a period of three weeks to provide the first and second defendants with more time to vacate the property.
Ms Catanzariti submitted in response that the first defendant owns another property in Delegate NSW and so it is not the situation that the defendants will have nowhere to live. This was not disputed.
Ms Catanzariti submitted that the property in issue is in Merimbula and the peak time to list a property of that kind for sale is the summer holiday season, which is nearly upon us, and that the opportunity to list in that way and thus benefit the estate will be lost if the writ of possession is delayed.
Ms Catanzariti also submitted that there is no evidence that there are particular medical needs or proximity to particular medical facilities required, and therefore I ought to reject the proposal raised by Ms Lane.
Again, I am in no way being critical of Ms Lane that she has not been able to be assisted with instructions to further this submission, however in all the circumstances I consider that it is not reasonable to delay the writ of possession. I am of the view that the writ of possession should be issued forthwith, noting that that still entails a four week delay at least before the Sheriff would facilitate vacation of the premises, should that be required.
I make the following orders:
1. An order for the possession of the property situated at and known as 38 Cliff Street, Merimbula, New South Wales, 2548, being the land comprised in folio identifier 12/11/758670.
2. Leave to issue a writ of possession forthwith.
3. The respondents are to vacate the property forthwith.
4. The respondents are to pay the estate of Jeanette Elaine Hellstrom occupation rent in the sum of $270 per week from 29 March 2019 to the date the property is vacated by the residents.
5. The first and second defendants pay the costs of the plaintiff.
6. These orders are to be entered forthwith.
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Decision last updated: 30 January 2020