Affidavit under Part IV of the Trustee Act by Tenterfield Shire Council [2019] NSWSC 894

Supreme Court New South Wales

Medium Neutral Citation: Affidavit under Part IV of the Trustee Act by Tenterfield Shire Council [2019] NSWSC 894 Hearing dates: 5, 8, 15 February; 9 April, 14 May, 11 June 2019; 27 June 2019 Date of orders: 16 July 2019 Decision date: 16 July 2019 Jurisdiction: Equity Before: Emmett AJA Decision: 1. Notice of Motion filed 18 September 2017 dismissed. 2. Order under s 98 of the Trustee Act 1925 (NSW) that the monies in Court be paid out to Russell Templeton in his capacity as Administrator of the estate of the late Lucille Walsh. 3. Order that the Notice of Motion of 31 January 2018 be otherwise dismissed. 4. Reserve the question of costs of both motions. Catchwords: LAND LAW – property sold by Council under Ch 17 Pt 2 Div 5 of the Local Government Act 1993 (NSW) – net proceeds of sale paid into Court under Div 4 Pt 70 of Supreme Court Rules 1970 and Pt 4 of the Trustee Act 1925 (NSW) – entitlement to net proceeds of sale in Court

LAND LAW – whether at time of sale, the Property was owned solely by Lucille Walsh, solely by the estate of the late Jeanette Walsh, or jointly by the estate of Jeanette and Lucille as tenants in common – whether joint tenancy between Jeanette and Lucille had been severed - whether prior to the sale of the Property, Mr Sean Vicary had any interest in the Property as mortgagee Legislation Cited: Conveyancing Act 1919 (NSW) Limitation Act 1969 (NSW) Local Government Act 1993 (NSW) Real Property Act 1900 (NSW) Supreme Court Rules 1970 (NSW) Trustee Act 1925 (NSW) Cases Cited: Bonifacio v NSW Trustee and Guardian [2015] NSWSC 124 Corin v Patton (1990) 169 CLR 540 Crawley v Short (2009) 262 ALR 654 JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 Orr v Ford (1989) 167 CLR 316 Weber v Ankin [2008] NSWSC 106 Texts Cited: Digest of Justinian, in Corpus Juris Civilis (Theodor Mommsen & Paul Krueger eds., 1880-95), 8.5.10.pr; 41.2.3.1; 43.17.1.pr. Justinian's Institutes (Paul Krueger ed., Peter Birks & Grant McLeod trans., 1987), 4.15.4. Pollock and Wright, An Essay on Possession in the Common Law (1845-1937) at 20. Category: Principal judgment Parties: Jack Edward Walsh, Administrator under Letters of Administration 23 July 2004 of the Estate of Jeanette Irene Walsh (Applicant) Russell Eric Templeton, Administrator under Letters of Administration 31 March 2014 of the Estate of Lucille Mary Kathleen Marshall (nee Walsh) (Respondent) Representation: Counsel: J E Thomson (Applicant - Jack Edward Walsh) G B Colyer (Respondent - Russell Eric Templeton)