Caldar and Estate Late Gittoes v Public Trustee [2005] NSWCA 3

New South Wales Court of Appeal

CITATION: Caldar and Estate Late Gittoes v Public Trustee [2005] NSWCA 3

HEARING DATE(S): Wednesday 19 January 2005

JUDGMENT DATE: 19 January 2005

JUDGMENT OF: Tobias JA at 1

DECISION: Notice of Motion dismissed with costs

CATCHWORDS: PROCEDURE - Application for stay of execution of writ of possession - Circumstances in which Court will exercise discretion in favour of granting a stay - Whether appeal would be rendered nugatory if stay not granted - Whether claimaint has arguable case on appeal - WILLS PROBATE AND ADMINISTRATION - Administration of will by Public Trustee - Sale of property required to cover debts of estate - Writ of possession obtained by Public Trustee - Claimant claiming property in specie - Claimaint had lived in and maintained property

Wills Probate Administration Act 1898 LEGISLATION CITED: Trustee Act 1925 Wills Probate Administration Act

Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 CASES CITED: Caldar v Public Trustee & Ors [2003] NSWCA 187

Russell Caldar PARTIES: The Estate of the Late Mrs Rachel Isobell Gittoes Public Trustee of New South Wales

FILE NUMBER(S): CA 41204/04

Cl: In person SOLICITORS: Opp: L Ellison / J Patey

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC 13973/04

LOWER COURT JUDICIAL OFFICER: Hidden J

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41204/04 SC 13973/04

TOBIAS JA