Abson by his tutor NSW Trustee and Guardian v Johnston

[2024] NSWSC 151

Supreme Court

New South Wales

Medium Neutral Citation:

Abson by his tutor NSW Trustee and Guardian v Johnston [2024] NSWSC 151

Hearing dates:

23 February 2024

Date of orders:

23 February 2024

Decision date:

23 February 2024

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Leave granted to Plaintiff to amend the statement of claim in the form attached to the plaintiff’s notice of motion filed 19 October 2023.

2. The amended statement of claim is to be served upon the defendant in accordance with the Rules.

3. Defendant’s name to be amended from Matthew Fitzgerald to Matthew Johnston on Justice Link.

4. Listed for Directions before Davies J at 9:30am on 5 April 2024.

5. Liberty to apply on 2 days’ notice.

6. Costs reserved.

Catchwords:

CIVIL PROCEDURE – amendment of statement of claim – possession proceedings – where defendant occupying plaintiff’s premises wrongly named – where correct name ascertained after attempted service – leave to amend

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Matthew Abson by his tutor NSW Trustee and Guardian (Plaintiff)
Matthew Johnston (Defendant)

Representation:

Counsel:
D Woods (Plaintiff)
No appearance (Defendant)

Solicitors:
Legal Aid NSW (Plaintiff)
Self-represented (Defendant)

File Number(s):

2023/150743

Publication restriction:

Nil

Judgment

1. These proceedings commenced on 8 May 2023. They are effectively brought by the NSW Trustee and Guardian (“NSWTAG”) on behalf of the plaintiff, who is the owner of property at 11/119 Windsor Street Richmond. The NSWTAG was appointed the financial manager of the plaintiff by the Guardianship Tribunal on 17 August 2000. The plaintiff suffers from schizophrenia and has impairment of his cognitive abilities.

2. The proceedings claim possession of the property in Windsor Street Richmond. The statement of claim alleges that the property was occupied by one Matthew Fitzgerald. The defendant was so named because the plaintiff informed the NSWTAG that that was the name of the person he believed was in occupation as a result of an agreement for that person to reside temporarily in the property.

3. Shortly after the person moved into the property, an altercation occurred between the plaintiff and the person, so that the plaintiff was forced to move out of his property. He alleges that the person now denies him re-entry to the property.

4. When the process server came to serve the statement of claim and a notice to occupier on the defendant, he ascertained that he was speaking to a person called Matthew Johnston, who agreed that he and his son were in occupation of the premises.

5. It became clear that the plaintiff was mistaken in the name that he had provided to the NSWTAG, and that the person concerned was in fact Matthew Johnston. In those circumstances, the plaintiff now seeks by notice of motion filed 19 October 2023 to amend the statement of claim to name the defendant as Matthew Johnston.

6. The motion and the proceedings came before the Registrar on 5 December 2023. On that occasion Mr Johnston appeared in person. The Registrar made directions concerning the filing of affidavits by Mr Johnston in answer to the notice of motion. Such affidavits were to be filed by 8 February 2024. No such affidavits have been filed, and Mr Johnston did not appear when the matter was before the Court this morning.

7. No prejudice can be occasioned to Matthew Johnston by the proposal to amend the statement of claim merely to identify him correctly as the defendant to the proceedings. Accordingly, leave should be granted for the plaintiff to amend the statement of claim in the form annexed to the notice of motion filed 19 October 2023.

8. The plaintiff also seeks default judgment against Mr Johnston although, at the time the notice of motion for default judgment was filed on 2 August 2023, Matthew Fitzgerald was named as the defendant. In the circumstances of Mr Johnston remaining unrepresented in the proceedings, I consider that the amended statement of claim should first be served upon him in accordance with the rules. If he fails to file a defence within the required time, I will then give consideration to the notice of motion for default judgment.

9. The costs of today are reserved.

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Decision last updated: 23 February 2024