Gibson v Murray [2018] NSWSC 1067

Supreme Court New South Wales

Medium Neutral Citation: Gibson v Murray [2018] NSWSC 1067 Hearing dates: 11 May, 8 June 2018; further written submissions ending 2 July 2018 Date of orders: 11 July 2018 Decision date: 11 July 2018 Jurisdiction: Equity - Real Property List Before: Parker J Decision: 1. Order that the monies held under the control of Gordon Albert Salier pursuant to the orders of the Court made on 20 October 2017 be paid out to the New South Wales Trustee & Guardian to be dealt with as an asset in the estate of the late Jeanie Gibson.

2. Order that the cross-claim be dismissed.

3. Order that the First and Second Defendants pay the costs of all other parties to the proceedings.

4. Grant liberty to the First and Second Plaintiffs to apply within 28 days of today's date with respect to the incidence of the costs and disbursements charged by Mr Salier, and with respect to payment of further interest on the monies held by him. Catchwords: LAND LAW – life estate and interest in remainder – absolute gift – whether Deed of family arrangement provided for the grant of a life estate or absolute gift

LIMITATION OF ACTIONS – land – Limitation Act 1969 (NSW), s 36 – claim to recognise interest under Deed of family arrangement an action to "enforce an equitable estate or interest in land"

LIMITATION OF ACTIONS – land – Limitation Act 1969 (NSW), s 27(2) – claim to recognise an interest under Deed of family arrangement a "cause of action to recover land" – when cause of action to recover a life estate accrues

LIMITATION OF ACTIONS – trusts – executors and administrators – alleged appropriation of estate by administrator – facts known or discoverable with reasonable diligence Legislation Cited: Limitation Act 1969 (NSW), ss 23, 27, 31, 36, 47, 51 Probate and Administration Act 1898 (NSW), s 45 Real Property Act 1900 (NSW), ss 41, 93, 96, 100 Uniform Civil Procedure Rules 2005 (NSW), rr 7.10, 27.1 Cases Cited: Watson v Foxman (1995) 49 NSWLR 315 Verebes v Verebes (1995) 7 BPR 14,408 Texts Cited: Brendan Edgeworth, Butt's Land Law (Lawbook Co., 7th ed, 2017) Category: Principal judgment Parties: John Gibson (First Plaintiff / First Cross-Defendant) Margaret Jaworski (Second Plaintiff / Second Cross-Defendant) Robert George Murray (First Defendant / First Cross-Claimant) Anne O'Brien (Second Defendant / Second Cross-Claimant) NSW Trustee & Guardian as executor of the wills of Jeanie Gibson and John Gibson (Third Defendant / Third Cross-Defendant) Jeanne Mackenzie (Fourth Cross-Defendant) Ruth Mackenzie (Fifth Cross-Defendant) Colin Mackenzie (Sixth Cross-Defendant) Representation: Counsel: JE Thomson (First and Second Plaintiff) MM Pringle (First and Second Defendant)