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RYAN v. LOUIE ZEKAS - (22 Jan 2019)

Injunction is available to prevent an executor distributing whole or part of a deceased estate and in such case standard principles applicable to interlocutory injunctions apply

Property

The Plaintiff is seeking relief under the Family Provision Act 1972 (WA) from the estate of Christoniki James (the deceased). The matter is well advanced with a trial anticipated early this year. In CIV 2562 of 2018, the plaintiffs, as executors of the estate of the deceased, seek an order for sale of a property in Sorrento which is owned as tenants in common and equal shares by Mr Ryan (the defendant) and the estate of the deceased. In that action, the plaintiffs have sought summary judgment. In CIV 1144 of 2016, Mr Ryan (the plaintiff) has sought an injunction to restrain the sale of the Sorrento property.

The question that arises on these two applications is whether or not the executor should be restrained by injunction from selling the Sorrento property pending determination of the Family Provision Act claim by Mr Ryan.

An injunction is available to prevent an executor distributing the whole or part of a deceased estate, the standard principles applicable to interlocutory injunctions apply. It is a matter of determining first, whether there is a serious question to be tried, and second, whether the balance of convenience favours the grant of the injunction.

In this case, there is a serious question to be tried. This was a long standing partnership - Mr Ryan and the deceased were together for some 24 years. It is clear from the affidavits which have been filed that arguments will arise as to the nature and strength of their relationship, but the fact remains they co-habited for a very lengthy period of time. Mr Ryan is elderly and the evidence seems to indicate he is of moderate means. It is certainly arguable that he should have the right to remain in the Sorrento property if he wishes to do so.

The balance of convenience also favours the grant of the injunction. If the Sorrento property is sold, Mr Ryan's home is gone and that must necessarily affect the relief which would be available if he were successful in his Family Provision Act claim. The evidence does not disclose that there is an urgent need to sell the property, although it seems clear Mr Ryan is not paying any rent to the deceased estate for his occupancy of the premises. That is a matter which will no doubt be taken into account in the course of any hearing. Furthermore, it is clear that this relatively straightforward matter has proceeded at a leisurely pace.

The application for summary judgment is dismissed. The costs of the application be costs in the cause. The first defendant be restrained from selling, disposing of, encumbrancing or otherwise dealing with the deceased's 50% share as tenant until after judgment in this action commenced in terms of the Family Provision Act 1971 (WA) or further order of the court. Leave to further amend originating summons granted.

Tags : PROPERTY   SALE   INJUNCTION   GRANT  

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