Flanagan v Flanagan [2015] NSWSC 697

Flanagan v Flanagan [2015] NSWSC 697

Plaintiffs, as executors with probate, are entitled to possession of the estate property where the defendants, though having raised an arguable defence based on representations, provide no pleaded case nor evidence of detriment; accordingly, defence should be struck out, possession granted, and costs awarded to plaintiffs.

Jurisdiction
Australia
Judgment Date
03 June 2015
Procedural Posture
Possession of Land / Judgment After Notice of Motion and Consent Orders
Outcome
Judgment for the plaintiffs for possession; defence struck out; leave to issue writ of possession; defendants to pay plaintiffs' costs
Legal Topics
['possession of Land' 'executors and Estates' 'defence to Possession' 'costs']
['real Property' 'common Law'] ['possession of Land' 'executors and Estates' 'defence to Possession' 'costs']

Case Brief

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Procedural Posture

Possession of Land / Judgment After Notice of Motion and Consent Orders

Legal Issues

  1. 1 ['Whether the plaintiffs as executors are entitled to possession of estate property' 'Whether the defence raised by the defendants was arguable' "Whether defendants should pay the plaintiffs' costs"]

Ratio Decidendi

Plaintiffs, as executors with probate, are entitled to possession of the estate property where the defendants, though having raised an arguable defence based on representations, provide no pleaded case nor evidence of detriment; accordingly, defence should be struck out, possession granted, and costs awarded to plaintiffs.

Court Disposition

Judgment for the plaintiffs for possession; defence struck out; leave to issue writ of possession; defendants to pay plaintiffs' costs

Orders

  • ['Defence of 24 March 2015 is struck out.' 'Judgment for the Plaintiffs for possession of the land comprised in Lot 44 in Deposited Plan 9263 and known as 25 Albion Street, Umina Beach NSW 2257.' 'Leave to the Plaintiffs to issue a writ of possession to enforce judgment of the Court; such writ not to be executed...