GEL Custodians v Estate of late Geoffrey Francis Wells [2013] NSWSC 973

This case concerns the procedure to be followed in a claim for possession of land where the registered proprietor has died and there is no representative of the deceased’s estate.

The deceased had died, and the loan had fallen into default. The lender served notices pursuant to the Real Property Act on the NSW Trustee and Guardian, who replied they had no record of the matter and did not administer the estate but acknowledged service under s61 of the Probate and Administration Act (1898) which provides a deeming provision vesting the estate in the NSW Trustee and Guardian (formerly known as the Public Trustee).

The lender issued a Statement of Claim against “The Estate of the Late Geoffrey Francis Wells” and served a copy on the NSW Trustee and Guardian and at the property. No defence was filed and they obtained default judgment and applied for a writ of possession. However, the Registrar then set aside the default judgment on the basis that there could not be any action against an estate prior to a grant of probate or administration and the NSW Trustee and Guardian (Public Trustee) does not represent the estate for the purpose of bringing proceedings against the estate.

The lender had the matter reviewed by a Judge to determine whether service on the NSW Trustee and Guardian is sufficient service where there is no administrator of the deceased’s estate. The Judge confirmed that where a claim for possession is made in relation to a person who has died and where no grant of probate or administration has made in their estate the proper defendant to the proceedings is the NSW Trustee and Guardian by virtue of s.61. This is so whether possession is sought by a landlord, lender, or any other person entitled to possession.

However, the lender had not in fact filed their claim stating the NSW Trustee and Guardian as the defendant – they had named “The Estate of the Late Geoffrey Francis Wells”. The Judge found that a defendant by that name is not a legal person, and no judgment could be given against such a defendant. Therefore the Judge agreed that the Registrar’s decision to set aside the default judgment and refuse the writ of possession was correct, although his reasons were not. The lender was required to amend the proceedings to name the NSW Trustee and Guardian as the defendant before any further steps could be taken.

 

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