Harkin v Harkin [2022] NSWSC 1212

Supreme Court New South Wales

Medium Neutral Citation: Harkin v Harkin [2022] NSWSC 1212 Hearing dates: 5 September 2022 Date of orders: 5 September 2022 Decision date: 09 September 2022 Jurisdiction: Equity - Duty List Before: Meek J Decision: Notice of motion dismissed. Catchwords: REAL PROPERTY — Application by owner of one-third share as tenant in common for possession of land and leave to issue but stay for a period a writ of execution — Motion in substance an application for summary judgment for part of final relief sought in statement of claim — Motion dismissed CIVIL PROCEDURE — Application for summary judgment — A party who seeks judgment for possession of property should ordinarily provide the Court as part of the evidence in support of the application with a copy of a title search for the property at least so the Court is aware of potentially any other relevant interests that are recorded or noted on the register REAL PROPERTY — Co-ownership — effect of an order under s 66G Conveyancing Act 1919 (NSW) on the rights of a co-owner SUCCESSION — Probate — Failure by executrix to administer estate for 5 years — Failure of executrix to lodge transmission application in respect of the deceased's two-third's share as tenant in common — Executrix alleges plaintiff has inhibited administration PRACTICE — Estates — Duty of the parties involving contested applications before the Court for relief to assist the Court by providing a copy of the Grant of Probate or Letters of Administration, inventory of property and details of administration PRACTICE — Duty of the parties to assist the Court to further the overriding purpose of just, quick and cheap resolution of real issues in the proceedings — Parties ought to reflect upon real issues and benefits to be obtained from facilitating the overriding purpose so that ideally the assistance given to the Court, pursuant to the duty to assist, is given willingly not begrudgingly — Parties directed to consult with view to seeking if agreement can be reached to revoke grant and permit appointment of independent administrator Legislation Cited: Civil Procedure Act 2005 (NSW), s 56 Conveyancing Act 1919 (NSW), ss 66G, 66H, Pt 4 Div 6 Real Property Act 1900 (NSW), ss, 86, 93 Succession Act 2006 (NSW), s 59 Uniform Civil Procedure Rules 2005 (NSW), r 13.1 Cases Cited: Abbott v Pegler (1980) 1 BPR 9267 Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 Application of Richard Albarran; Harb v Harb [2010] NSWSC 125 Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27 Biviano v Natoli (1998) 43 NSWLR 695 Bourdales v Carroll; Estate of Diane Holbrook [2007] NSWSC 1057 Chalak v G & G Mikhael Pty Ltd [2022] NSWCA 116 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87; [1983] HCA 25 Foundas v Arambatzis (No. 3) [2020] NSWCA 87 Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635; [1993] HCA 45 Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306; [1990] HCA 45 Savieri v Brown [2008] NSWSC 1210 Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28 State of New South Wales v Koumdjiev (2005) 63 NSWLR 353; [2005] NSWCA 247 Webster v Lampard (1993) 177 CLR 598; [1993] HCA 57 Texts Cited: Brendan Edgeworth, Butt's Land Law (7th ed, 2017, Lawbook Co) Mason and Handler Succession Law and Practice NSW (LexisNexis, looseleaf) Shannon Lindsay, Caveats Against Dealings in Australia and New Zealand (1995, Federation Press) Category: Procedural rulings Parties: Gregory Harkin (Plaintiff) Colin Harkin (First Defendant) Sherrie Harkin (Second Defendant) Representation: Counsel: B Flaherty (Plaintiff) In person (Defendants) Solicitors: Ryan & Ryan Lawyers (Plaintiff) File Number(s): 2022/29582