Pauperis v Pauperis [2020] NSWSC 1470

Supreme Court New South Wales

Medium Neutral Citation: Pauperis v Pauperis [2020] NSWSC 1470 Hearing dates: 2, 3, 8 September 2020 Date of orders: 23 October 2020 Decision date: 23 October 2020 Jurisdiction: Equity Before: Parker J Decision: See [192]-[200] Catchwords: SUCCESSION – executors and administrators – rights, powers and duties – duty to realise deceased's property for the benefit of the estate – deceased had been in possession of real property registered in the name of another person who had died in 1969 – deceased had ceded occupation and control of that property to the person nominated as executor of her will – whether at the date of the deceased's death the deceased had an entitlement to possessory title forming part of her estate REAL PROPERTY – possessory title – property in possession of non-owner – non-owner cedes occupation and control to another person – which party entitled to apply for possessory title EQUITY – fiduciary duties – breach – second limb of Barnes v Addy – whether the wife of an executor who registered possessory title over property belonging to the estate knowingly participated in "dishonest and fraudulent design" Legislation Cited: Real Property Act 1900 (NSW), pt 6A, s 42 Trustee Act 1925 (NSW), s 85 Uniform Civil Procedure Rules 2005 (NSW), pt 54 Cases Cited: Alexander v Perpetual Trustees WA Ltd (2004) 216 CLR 109 Allen v Roughley (1955) 94 CLR 98 Bogdanovic v Koteff (1988) 12 NSWLR 472 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 Newington v Windeyer (1985) 3 NSWLR 555 Strel v Cordia [2016] NSWSC 1596 Category: Principal judgment Parties: Ralph Udo Pauperis (Plaintiff) Kurt Werner Pauperis (First Defendant) Judith Joy Elwing (Second Defendant) Representation: Counsel: N Allan (Plaintiff) B Connell (Defendants)