HER v MJM [2020] NSWSC 1743

HER v MJM [2020] NSWSC 1743

It was in MJM's interests for the Potts Point property to be sold if possible because otherwise there was a risk that his estate would run out of money required to support him, and SJH lacked practical power to compel related companies or trusts to provide funds. The appropriate course was therefore to authorise SJH to commence separate possession proceedings, leaving any transfer or stay application to be considered in those proceedings.

Jurisdiction
Australia
Judgment Date
02 December 2020
Procedural Posture
Application Concerning Administration of a Protected Estate / Urgent Notice of Motion in the Equity Duty List for Directions/advice About Commencing Possession Proceedings
Outcome
SJH was authorised to commence separate possession proceedings against DT; costs of the application were ordered to be costs in those proceedings.
Legal Topics
['protected Estate Management' 'incapable Person' 'possession Proceedings' 'de Facto Relationship Property Claim' 'transfer or Stay Pending Family Court Proceedings']
['civil Procedure' 'equity' 'protective Jurisdiction' 'family Law'] ['protected Estate Management' 'incapable Person' 'possession Proceedings' 'de Facto Relationship Property Claim' 'transfer or Stay Pending Family Court Proceedings']

Case Brief

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Procedural Posture

Application Concerning Administration of a Protected Estate / Urgent Notice of Motion in the Equity Duty List for Directions/advice About Commencing Possession Proceedings

Legal Issues

  1. 1 ["Whether the manager of MJM's protected estate should be authorised or directed to commence possession proceedings against DT in relation to the Potts Point unit." 'Whether the application should be treated as an application for judicial advice/directions rather than an immediate application for possession.' "Whether DT's pending Family Court de facto property claim affected the Court's decision to authorise commencement of possession proceedings."]

Ratio Decidendi

It was in MJM's interests for the Potts Point property to be sold if possible because otherwise there was a risk that his estate would run out of money required to support him, and SJH lacked practical power to compel related companies or trusts to provide funds. The appropriate course was therefore to authorise SJH to commence separate possession proceedings, leaving any transfer or stay application to be considered in those proceedings.

Court Disposition

SJH was authorised to commence separate possession proceedings against DT; costs of the application were ordered to be costs in those proceedings.

Orders

  • ['Direct that the applicant is authorised to commence separate proceedings by summons to be filed in the Equity Division of the Court in the name of [MJM], naming as defendant [DT], such proceedings claiming an order for possession of the [Potts Point unit].' 'Order that the costs of the application as between the...