P Barnes (as executor of the estate of the late Lawrence Barnes) v D Barnes (No 3) [2023] NSWSC 491

Supreme Court New South Wales

Medium Neutral Citation: P Barnes (as executor of the estate of the late Lawrence Barnes) v D Barnes (No 3) [2023] NSWSC 491 Hearing dates: 24 April 2023 Date of orders: 10 May 2023 Decision date: 10 May 2023 Jurisdiction: Common Law Before: Schmidt AJ Decision: Judgment for the plaintiff. Proposed orders reflecting the conclusions reached should be filed within 14 days, together with short written submissions if there is any dispute about them, including as to the costs which the parties indicated they wish to be heard on. Catchwords: SUCCESSION — Executors and administrators — order for possession of property — order sought by executor against co-executor — prior agreement requiring co-executor to vacate property — whether agreement rescinded, varied or replaced by later agreement for co-executor to purchase property — form of sale contract — implied term requiring completion in a timely manner — whether co-executor ready, willing and able to complete purchase — sale agreement in place but purchase not complete and contract terminated — order must be made CIVIL PROCEDURE — Cross-claims — order seeking specific performance of prior agreement — no evidence of part performance — no evidence of co-executor's ability to pay purchase price — contract no longer on foot — order cannot be made CIVIL PROCEDURE — Hearings — adjournment — where defendant made repeated adjournment applications at hearing — where no notice of motion and supporting affidavit seeking adjournment filed — whether defendant given a fair opportunity to advance case — dictates of justice — Civil Procedure Act 2005 (NSW), s 56, 58, 59, 60 — applications refused Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 58, 59, 60 Conveyancing Act 1919 (NSW), s 54A Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Allen v Carboe (1975) 132 CLR 528; [1975] HCA 14 Barnes v Barnes (No 2) (Supreme Court (NSW), Schmidt AJ, 24 April 2023, unrep) Barnes v Barnes (Supreme Court (NSW), Sweeney J, 19 April 2023, unrep) Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622 Carydis v Merrag Pty Ltd [2007] NSWSC 1220 Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1; [2016] HCA 26 Masters v Cameron (1954) 91 CLR 353; [1954] HCA 72 McDonald v Commissioner of Taxation (2001)109 FCR 207; [2001] FCA 305 Mehmet v Benson (1965) 113 CLR 295; [1965] HCA 18 Radoman Pty Ltd v Vexapu Ply Ltd [2008] NSWSC 8 RTS Flexible Systems Ltd v Molkerei Alois Muller GmbH & Co KG [2010] 1 WLR 753 Tweddell v Henderson [1975] 1 WLR 1496 Woodhouse v Woodhouse [2022] NSWSC 204 Category: Principal judgment Parties: Phillip Barnes (as executor of the estate of the late Lawrence Barnes) (Plaintiff) Darren Barnes (Defendant) Representation: Counsel: Ms J Treherne (Plaintiff) Mr D Barnes (Defendant) self-represented