Belle (as executor of the estate of the late Shirley May Belle) v Belle

HIS HONOUR: The plaintiff is the executor of the Will and trustee of the Estate of the late Shirley May Belle who died on 22 February 2017. Probate of the Will of the deceased dated 28 May 2012 was granted to the plaintiff on 17 May 2018. The plaintiff and the defendant are respectively the son and daughter of the deceased. The plaintiff is uncontroversially the current registered proprietor of the property.

At the date of her death, the deceased was the registered proprietor of the property situated in Alfred Street, Cessnock where she resided with the defendant. By her Will, the deceased made the following provision with respect to that property:

Each of the plaintiff and the defendant and their sister were given a one-third interest in the net proceeds of sale of the property after the provision of small legacies to be paid out of those proceeds in favour of three grandchildren of the deceased.

By his statement of claim filed on 25 March 2019, the plaintiff sought an order for possession of the land and what are described as “damages for trespass at the rate of $290 per week from 7 September 2018”. The statement of claim pleaded that the Will of the deceased granted the defendant the use and benefit of the Cessnock property for her lifetime but that it was a further term of the Will that her use and benefit of the property was “subject to payment by [her] of all rates, taxes, insurance to the full insurable value, and for necessary maintenance and repairs.” The statement of claim pleads further that the defendant has resided in the property since before the death of the deceased.

The statement of claim proceeds to allege that the defendant has failed to pay council and water rates and has not confirmed that she has insured the property. On 19 July 2018, the plaintiff served a notice to vacate the property upon the defendant, requiring her to do so on or before 7 September 2018. The statement of claim pleads that by remaining in possession of the property, the defendant has committed a trespass and that that trespass is continuing. The statement of claim contends further that by reason of these things, “the plaintiff has been deprived of the use and enjoyment of the said property, and has thereby suffered loss and damage.”

On 11 July 2019, the plaintiff moved the Court by notice of motion filed on that day for leave to issue a writ of possession. The affidavit filed in support of that motion was sworn by the plaintiff on 5 July 2019 and contains the following:

A writ of possession was issued to the plaintiff by this Court on 15 August 2019.

When the matter came before me on 5 September 2019, Mr Chan of counsel for the plaintiff informed me that:

In the events that occurred, Mr Chan was correct and the defendant did not appear. Indeed, Mr Chan in due course informed me that even though she had been notified of the plaintiff’s intention to proceed to recover monies from her, howsoever described, as claimed in the statement of claim, she had not in fact been informed that the matter was to be heard or that it was to proceed on 5 September 2019.

As the transcript will reveal, I became somewhat concerned that the defendant was not present before me and, perhaps more importantly, that she had not responded to the plaintiff’s solicitor’s letters or taken steps to defend the proceedings. It will be apparent that that concern was generated by the fact that the defendant was the beneficiary of a potentially valuable interest in the property and that the plaintiff had sought and obtained a writ of possession and had threatened to remove her from occupation of the property for what was alleged to be breaches of conditions to which her occupation was said to be subject. Having regard to the fact that I felt that there was a considerable amount of potentially relevant and important information with which I had not been provided, I requested Mr Chan to have his solicitor prepare an affidavit directed to elucidating some of the areas that were of concern to me.

The matter returned to me at 2pm. Mr Chan very efficiently provided me with an affidavit affirmed by Louise Abigail Heslop on 5 September 2019. It is important to record some of the helpful matters to which Ms Heslop has deposed:

UCPR 16.3 provides relevantly as follows:

As presently advised, I am not prepared to proceed further with the plaintiff’s application in the absence of the defendant. I am aware that she has failed to respond to any correspondence sent by the plaintiff’s solicitor or to any process that has been served upon her. I am however, not able to be satisfied that the defendant’s failure to take any steps to protect her position in this litigation is the result of a conscious or informed decision. In the slightly unusual circumstances of this case, therefore, I propose to list the matter before me at a date convenient to the legal representatives of the plaintiff and to require the plaintiff by his solicitor to write to the defendant beforehand in the following terms:

I will reserve the costs of 5 September 2019.