Dowling v Irvine [2005] NSWSC 531

New South Wales Supreme Court

CITATION : Dowling v Irvine [2005] NSWSC 531

HEARING DATE(S) : 5 April 2005

JUDGMENT DATE : 3 June 2005

JURISDICTION : Common Law

JUDGMENT OF : Johnson J at 1

DECISION : 1. The Plaintiff to have judgment for possession of the whole of the land contained in Certificate of Title Folio Identifier 51/1000197 known as "Lowery", Toogong; 2. the Plaintiff to have leave to issue a writ of possession with respect to "Lowery" for execution no sooner than 8 July 2005; 3. the Defendant is restrained from re-entering "Lowery" after execution of the writ of possession which is to occur no sooner than 8 July 2005, other than for the purposes of attending a public auction of "Lowery" or with the written consent of the Plaintiff; 4. the Defendant's Notice of Motion of 31 March 2005 is dismissed; 5. the Defendant is to pay the Plaintiff's costs of the Notice of Motion filed on 18 February 2005.

CATCHWORDS : REAL PROPERTY - proceedings by executrix of estate, as registered proprietor, to obtain possession of estate property for sale - application for summary judgment - orders made.

Family Provision Act 1982 LEGISLATION CITED : Wills Probate and Administration Act 1898 Supreme Court Rules

Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at 91 General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125 Webster v Lampard (1993) 177 CLR 598 CASES CITED : Cosmos E-Commerce Pty Limited v Bidwell & Associates Pty Limited [2005] NSWCA 81 Long Keys Cove Pty Limited v Silkdale Pty Limited (Court of Appeal, 19 December 1991, BC91010317) Flower v Hart (1999) 163 ALR 744 Reynolds v Reynolds (1977) 2 NSWLR 295