GEL Custodians v Estate of late Paul Thomas Hussey [2013] NSWSC 974

This case concerns the procedure to be followed in a claim for possession of land where the borrower has died and there is no representative of the estate. It was given together with the judgment in GEL Custodians v Estate of late Geoffrey Francis Wells [2013] NSWSC 973  by the same judge about the same issues.

The borrower had died and the loan fell into default. The lender had commenced proceedings against “The Estate of the Late Paul Thomas Hussey” and served the Statement of Claim on the NSW Trustee and Guardian, who were not administering the estate but accepted service pursuant to s.61 of the Probate and Administration Act (1898). No defence was filed and the lender was granted default judgment. It had applied for a writ of possession, when the Registrar set aside the default judgment on the basis that there had not been proper service on the deceased estate.

The Judge confirmed in this matter the conclusion he had reached in Wells that the proper defendant in a claim for possession of land where the person against whom the order would have been sought has died and no grant has been made in their estate is the NSW Trustee and Guardian.

In the present case, as in Wells, the proceedings did not name the NSW Trustee and Guardian as the defendant. They named an entity with no legal existence. The Judge found that the Registrar’s decision to set aside the default judgment and refuse the motion for a writ of possession was correct, although not for the reasons the Registrar gave.


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