Dodd v Dodd [2020] NSWSC 1094

Dodd v Dodd [2020] NSWSC 1094

Because the defendant's only asserted basis for occupation was his family provision claim under the Succession Act, and such a claim did not create an interest in the property or a defence to possession, the defence disclosed no answer to the plaintiff executor's claim and was struck out, with leave granted to move for default judgment and issue a writ of possession.

Jurisdiction
Australia
Judgment Date
19 August 2020
Procedural Posture
Possession of Land / Procedural Ruling on Defence and Leave to Move for Default Judgment
Outcome
Defence struck out; leave granted to the plaintiff to move for default judgment and issue a writ of possession; remainder of proceedings transferred to the Equity Division after default judgment.
Legal Topics
['possession of Land' 'executor of Will of Registered Proprietor' 'family Provision Claim' 'defence Struck Out' 'default Judgment' 'writ of Possession']
['land Law' 'succession'] ['possession of Land' 'executor of Will of Registered Proprietor' 'family Provision Claim' 'defence Struck Out' 'default Judgment' 'writ of Possession']

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Procedural Posture

Possession of Land / Procedural Ruling on Defence and Leave to Move for Default Judgment

Legal Issues

  1. 1 ["Whether the defendant's claim for provision under s 59 of the Succession Act 2006 (NSW) gave him a defence to the plaintiff executor's claim for possession of the property." 'Whether the defence filed 25 July 2020 should be struck out and leave given to the plaintiff to move for default judgment and issue a writ of possession.']

Ratio Decidendi

Because the defendant's only asserted basis for occupation was his family provision claim under the Succession Act, and such a claim did not create an interest in the property or a defence to possession, the defence disclosed no answer to the plaintiff executor's claim and was struck out, with leave granted to move for default judgment and issue a writ of possession.

Court Disposition

Defence struck out; leave granted to the plaintiff to move for default judgment and issue a writ of possession; remainder of proceedings transferred to the Equity Division after default judgment.

Orders

  • ['Defence dated 25 July 2020 is struck out.' 'Leave to the plaintiff to move for default judgment and to issue writ of possession to enforce the judgment of the Court.' 'Remainder of proceedings after obtaining default judgment is transferred to the Equity Division.' 'Listed for Directions before Hallen J at 10am on...