NSW Trustee and Guardian v Michael Reading [2020] NSWSC 1831

Supreme Court New South Wales

Medium Neutral Citation: NSW Trustee and Guardian v Michael Reading [2020] NSWSC 1831 Hearing dates: 15 December 2020 Date of orders: 15 December 2020 Decision date: 15 December 2020 Jurisdiction: Common Law Before: Lonergan J Decision: (1) Pursuant to rule 28.2 of the UCPR the plaintiff's claim for possession set out in the Statement of Claim and the issues raised in the Defence are to be tried separately and prior to the remainder of the proceedings. (2) The parties are at liberty to approach the Civil List Manager for allocation of a 1 to 2 day hearing date early in 2021. (3) The proceedings are listed for directions before Lonergan J at 9:30am on Tuesday 15 February 2021 to make orders regarding preparation of court books and submissions. (4) Liberty to apply on 3 days notice. Catchwords: POSSESSION – separate question – whether claim for possession appropriate where will provides for life estate – whether the gift has adeemed or failed Legislation Cited: Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Category: Procedural and other rulings Parties: NSW Trustee and Guardian (Plaintiff) Michael Reading (Defendant) Representation: Counsel: A Hill (Defendant)

Solicitors: ProActive Legal Lawyers (Plaintiff) Dakin Law (Defendant) File Number(s): 2020/201826 Publication restriction: Nil

Judgment 1. By Statement of Claim filed on 8 July 2020, the plaintiff, the New South Wales Trustee and Guardian, seeks judgment for possession of the whole of the land contained in folio identifier xxxxxx, being Lot 3, Section 4 in DPxxxx, and known as 24 Dinoga Street, Bingara, New South Wales. The plaintiff also seeks an order that the defendant pay the plaintiff's costs. 2. The defendant is one of the offspring of the deceased, Peter John Reading, who died on 25 December 2017. 3. The Statement of Claim pleads that letters of administration with the will annexed were granted to the plaintiff in March 2019 on the basis that a Brenda Adeline McManus, who had been named as executor, renounced probate. 4. The plaintiff, who has at the last two directions hearings before me been represented by Mr Johnson, solicitor, has expressed a concern that is also mentioned in detail in the Statement of Claim that, although there is an argument that the will of the deceased grants a type of personal right of residence to the defendant, the property is not habitable and does not comply with building, health and safety standards and requires significant renovation, repairs, and maintenance. 5. The Statement of Claim pleads, and Mr Johnson emphasises, that the estate is a small estate and simply does not have sufficient funds to enable the plaintiff to make the property habitable. 6. The Statement of Claim also pleads that the gift to the defendant of a personal right of residence in the property has adeemed or failed. 7. On 6 January 2020, prior to these proceedings being commenced, a letter was sent by the plaintiff to the defendant giving notice requiring the defendant to vacate the property within fourteen days. The defendant has not vacated and remains in possession of the property. 8. Mr Hill of counsel has appeared for the defendant at the last and this directions hearing. He argues that the Statement of Claim is misconceived and ought not be brought in the face of an effective life estate having been appropriately provided to the defendant in his father's will. 9. The Defence, filed on 7 August 2020, acknowledges that the words of disposition in the deceased's will are ambiguous and may mean that the defendant has either (a) a life interest in the property or (b) a right to reside in the property. 10. The Defence, in paragraph 6, denies that the property is uninhabitable but admits that the property requires repairs and maintenance. 11. Generally, the defendant denies that the plaintiff has the right to vacant possession in order to sell the property for the beneficiaries and says that the plaintiff does not have a right to demand vacant possession, given that the gift pursuant to the will of the deceased has not adeemed or failed. 12. It is evident from what I have just outlined, that the parties' join issue about a fairly circumscribed question, although that question needs to be informed by some of the affidavit material filed. The affidavit material consists of, amongst other things, a pre-purchase inspection and building report filed on behalf of the plaintiff that sets out genuine concerns regarding the safety and habitability of the property. 13. The defendant, on the other hand, has filed affidavit material that maintains that he has some handyman skills and therefore is able to carry out certain work and has in fact done so. The question of whether the property can continue to be repaired and maintained is not entirely clear on the material currently before the Court, but I am informed by Mr Hill that Mr Reading is on invalid pension and has been and is able to carry out certain building tasks given his background as a builder's labourer. 14. Mr Johnson in reply has indicated that the concern of the beneficiaries and the plaintiff is that $40,000 of the estate has already been spent on the property and there is a real concern that the whole estate will be dissipated on legal costs. The beneficiary's preference is that the proceedings be mediated now with a minimum of costs. 15. Whilst I appreciate Mr Johnson's responsible attitude to pursuing unlitigated options, it is his client who chose to commence proceedings in a litigated fashion in this Possession List in the Common Law Division of this Court. I should note that a cross-claim has been filed by Mr Hill's client but obviously, that cross-claim only comes to need to be litigated if the plaintiff is successful in its proceedings against the defendant. 16. I acknowledge what Mr Johnson says, that the subject matter of that cross-claim would need to be transferred to the Family Provisions List to be dealt with, but it seems to me that acting consistently with s 56 of the Civil Procedure Act 2005 (NSW), there is a preliminary and clear separately triable issue that ought to be determined which may end the proceedings before this Court. 17. Accordingly, I make an order under Rule 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) for the issues raised in the Statement of Claim; that is, for vacant possession of the property, to be determined separately from any other question before any further trial in the proceedings of the issues that are raised on the cross-claim. 18. With the assistance of the legal representatives, I have formed the view that that hearing would take one to two days, and I grant the parties liberty to approach the Civil List Manager for allocation of a one to two day hearing date as early as practicable in 2021. 19. By this, I mean the parties are at liberty to approach the Civil List Manager immediately, however given the lateness in the Court term, it is inevitable a hearing date would probably not be able to be allocated until about February or March 2021. 20. I reserve the question of costs.