New South Wales Supreme Court CITATION : Davey v Baker [2005] NSWSC 333 HEARING DATE(S) : 21 March & 1 April 2005 JUDGMENT DATE : 1 April 2005 JURISDICTION : Equity JUDGMENT OF : Hamilton J DECISION : Orders made under s 66G of Conveyancing Act 1919. CATCHWORDS : SUCCESSION [289] - Executors and administrators - Other matters - Application for order that administrator execute a transfer of land to beneficiaries - Wills Probate and Administration Act 1898 s 84. Conveyancing Act 1919 ss 66F & 66G LEGISLATION CITED : Wills, Probate and Administration Act 1898 ss 83 & 84 In the Will of Paten (1896) 17 LR (NSW) B & P 90 CASES CITED : Re Anderson (1953) 53 SR (NSW) 520 Mason and Handler, Wills Probate and Administration Service New South Wales [1429.1] Frances Celia Davey (P1) Therese Jayne Case (P2) PARTIES : Helen Maree Stephens (P3) Lesley Anne Baker (P4) Kenneth Michael Baker (D) FILE NUMBER(S) : SC 4459/04 D M Flaherty (Ps) COUNSEL : In person (D) Creaghe Lisle (Ps) SOLICITORS : In person (D) LOWER COURT JURISDICTION : IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON J FRIDAY, 1 APRIL 2005 4459/04 FRANCES CELIA DAVEY & ORS v KENNETH MICHAEL BAKER - ESTATE OF MABEL BAKER JUDGMENT 1 HIS HONOUR: These are proceedings in which the plaintiffs sought initially an order for the transfer of property under s 84 of the Wills, Probate and Administration Act 1898 ("the WPAA"). They have, by amendment, applied for the appointment of trustees for sale of a house property ("the house property") under s 66G of the Conveyancing Act 1919 ("the CA"). The proceedings arise in the following way. 2 The registered proprietor of the house property is Mabel Baker. She died intestate on 17 March 1984. She had only two children, both sons. The first, Stanley George Baker, predeceased her, having died on 19 September 1975. He left four children, who are the plaintiffs in these proceedings. Her other son, Kenneth Michael Baker, is the defendant in these proceedings. 3 Many years after the deceased's death the defendant applied for letters of administration of her estate and these were granted to him on 18 May 1995. The most substantial asset of the deceased's estate is the house property, which is at 56 Chesterfield Parade, Waverley. This was the family home. There is, in fact, on the evidence, no other property of the estate, nor does the estate have any debts. All the parties in these proceedings are agreed that there is no need for any administration of the estate or for any order in that regard, other than in respect of the disposal of the house property. 4 The defendant married and had children, but the marriage broke up and he returned to live in the house property with his mother early in 1973. He continued to live there with his mother until her death in 1984. Indeed, he has continued to live in that property up to the present time. He remarried in 1992 and his present wife now lives there with him. He has not paid or been called on to pay anything in respect of his occupation of the house property, save that I take it he has paid the expenses of the house property in the meantime. For a long time the plaintiffs did not seek to disturb his possession of the house property, although of recent years there has been some correspondence between solicitors for the parties as to what should occur concerning the house property. As no agreement has been reached, these proceedings have been brought. Although he earlier employed solicitors, the defendant has appeared for himself on the hearing of the proceedings before me. He has told me that he has had a solicitor's advice concerning the situation in relation to the house property, although, of course, I am not privy to the content of that advice. 5 The defendant has given in evidence, or stated from the bar table, the following facts, which have not been controverted. He says that he was aware from conversations with her that his mother wished to leave him the house property and asked on a number of occasions that he take her to a solicitor for the purpose of her making a will. This he never did, at least in part because of upset at the time of unhappy relations with his first wife, particularly concerning their children. The fact of the matter, as is apparent, is that she did not in her lifetime make any will. Her estate has, therefore, passed on intestacy and the statutory entitlements to it are as to four undivided one-eighth shares to the defendant and as to one undivided one-eighth share to each of the four grandchildren who are the plaintiffs. Despite the passage of many years no application of any sort has ever been made, or is now made under the Family Provision Act 1982. 6 Section 84 of the WPAA provides as follows: "If the executor or administrator, after requesting in writing, neglects or refuses to: (a) sign such acknowledgment, or (b) execute a conveyance of land devised to the devisee, or (c) pay or hand over to the person entitled any legacy or residuary bequest, the Court may, on the application of such devisee or person, make such order in the matter as it may think fit." The order sought under that section was that the defendant, as administrator, transfer the house property to himself and to the plaintiffs as tenants in common in the shares in which they are entitled to the house property. It was my view that there were considerable problems concerning the making of this order. 7 Section 84 has been given a narrow interpretation: see Mason and Handler, Wills Probate and Administration Service New South Wales [1429.1]. It is not limited to old system land by reference to s 83: In the Will of Paten (1896) 17 LR (NSW) B & P 90. But whether it may be used in the present circumstances is dubious. If the narrow statutory power is not available, some form of order for the administration or partial administration of the estate would be necessary for an order to be made to effectuate the transfer sought: Re Anderson (1953) 53 SR (NSW) 520. And, in any event, a s 84 order would not solve the problem since it would merely shift the title from the deceased to her beneficiaries, without resolving their dispute as to the future of the house property. It would be unfortunate if this had to be done, because, as is apparent from what I have already said, there is no need for administration of this estate except in relation to the house property. 8 The plaintiffs have, however, now sought an order under s 66G of the CA. It seems to me clear that the house property is held in co-ownership within the definition contained in s 66F(1) of the CA. The defendant, in resisting that order, has drawn to my attention his mother's wishes, as he has given evidence of them, and of his use and treatment of the house property as his home under varying circumstances over a period of decades rather than years. Whilst his situation in facing eviction from his long standing home must evoke some human sympathy, there is nothing in the material before me that would make it proper to decline to make an order for the appointment of trustees for sale. The trustees proposed are two independent solicitors and their consents have been proffered and their suitability deposed to in the usual way. 9 The defendant in an affidavit filed today has proposed a different division of the house property than that which flows upon intestacy, namely, that the house property be divided to the intent that he should take a three quarters share in it and each of the plaintiffs a one sixteenth share. However, there is no power in the Court under s 66G of the CA to alter the existing proprietary rights in the house property or in the proceeds of sale. The Court simply cannot make orders to give effect to what the defendant has suggested and I need not visit the merits of such a suggestion. 10 In the circumstances it is my view that orders should be made under s 66G of the CA. 11 The orders of the Court will be: (1) I make orders in terms of pars 1A to 1E of the amended summons. (2) Liberty to any party and to the trustees to apply on two days' notice. (3) Amended summons otherwise dismissed. (4) No order as to the costs of the proceedings. 12 No order as to costs was sought from the Court. The costs have been dealt with as an expense to be paid out of the proceeds of sale of the house property before division, which appears to me to be an appropriate way of dealing with them in all the circumstances. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.