John David Mansour & Anne Khoury, Executors of the Estate of Anthony Hanna Mansour v Joseph Mansour [2013] NSWSC 1216

Supreme Court New South Wales

Medium Neutral Citation: John David Mansour & Anne Khoury, Executors of the Estate of Anthony Hanna Mansour v Joseph Mansour [2013] NSWSC 1216 Hearing dates: 30 August 2013 Decision date: 30 August 2013 Jurisdiction: Common Law Before: Davies J Decision: 1. The Defence filed 24 July 2013 is struck out. 2. Any further defence is to be filed and served by 6 September 2013. 3. Reserve costs. 4. Stood over to 9 September 2013 for directions. Catchwords: REAL PROPERTY - possession of land - executors wishing to administer estate of the deceased - house and land falls into residue - one residuary beneficiary in occupation - Defence does not disclose any defence to the claim - Defence struck out - leave to re-plead Category: Interlocutory applications Parties: John David Mansour & Anne Khoury, Executors of the Estate of Anthony Hanna Mansour (Plaintiffs) Joseph Mansour (Defendant) Representation: Counsel: D Allen (Plaintiff) In person (Defendant) Solicitors: Dib Lawyers (Plaintiff) In person (Defendant) File Number(s): 2013/188590

Judgment 1On 17 August 1974 Anthony Mansour died, leaving a will which gave a life estate in the property at 45 Renown Avenue, Punchbowl to his wife, and on her death directed that the house should fall into residue to be divided amongst his children, who include the Plaintiffs and the Defendant. 2The Plaintiff, John Mansour, became a trustee of the estate by Deed on 28 June 1985, and the Plaintiff, Anne Khoury, became a trustee of the estate by Deed on 13 October 1986. 3The life tenant died in September 2011. In the meantime the Defendant had commenced living in the property in 2009. The Plaintiffs are now desirous of selling the property so that they can properly administer the estate. 4The Defendant has refused to leave the property. 5Proceedings were commenced on 20 June 2013, reciting these essential matters. 6The Defendant filed a defence on 24 July 2013, acting for himself. The pleading in the Defence says only this: 1. Executors have a conflict of interest. 2. Obtained trust fraudulently. 7By reason of what the Defendant has said to me today I took the second matter to be the fact that the executors were improperly appointed as trustees of the estate. 8In addition the Defendant says that there has been mismanagement and fraud involved in the administration of the estate, and he wants to show that. He says, for reasons that are difficult to understand, that he needs to prevent the sale of the property so that he can demonstrate the fraud and mismanagement he asserts. 9He says that he consulted a solicitor on 20 August, and the solicitor has not yet had time to look at all of the material, and has asked for a three week adjournment. 10The proceedings were adjourned last time when they were before the court, on 22 August, for a similar reason. On that occasion the Senior Deputy Registrar directed the Defendant to serve any further affidavit evidence by 28 August. That has not occurred. 11The defence does not disclose any defence to the claim by the trustees for possession of the property. It will, therefore, be struck out. 12Because at the present time the Defendant is unrepresented, but has a solicitor looking at the matter, I think, in fairness to him, I should give him one further opportunity to file a defence which pleads a proper defence, if he has one, to the claim for possession. Any such defence is to be filed by 6 September 2013. 13I will stand the matter over to Monday 9 September, at 9.30. 14I will reserve the question of costs at this stage.