John Dodd died in early March 2020. John’s sister Marilyn (the plaintiff) is the executor and sole beneficiary of John’s estate.
John was the registered proprietor of land at 25 Rigney Street, Shoal Bay (the property). In late March John’s son, Peter (the defendant) moved onto the property. A scheduled auction in July 2020 had to be postponed and rescheduled due to Peter’s occupation of the land.
Peter filed a document described as a defence in late July 2020 submitting that he has filed a summons claiming that provision be made for him from the estate of his father under s 59 of the Succession Act 2006 (NSW) (“the Act”).
A caveat can only be lodged to protect a proprietary interest in Torrens title land. According to s 74F(1) of the Real Property Act 1900 (NSW), this interest must be
“a legal or equitable estate or interest in land.”
A caveat cannot be lodged to protect a contractual or personal right or a statutorily based right that does not confer any interest in land, similarly, the filing of a family provision claim does not amount to a defence to a claim for possession.
As the action under the Act is the sole basis for Peter’s claim to be in the premises, the court struck out the defence. Therefore Marilyn is entitled to commence proceedings for possession of the property, notwithstanding that a later order may be made under the Act.