Application by the Planning Ministerial Corporation

[2020] NSWSC 903

Supreme Court

New South Wales

Medium Neutral Citation:

Application by the Planning Ministerial Corporation [2020] NSWSC 903

Hearing dates:

On the papers

Date of orders:

16 July 2020

Decision date:

16 July 2020

Jurisdiction:

Common Law

Before:

Davies J

Decision:

(1) Dispense with any provision in the Uniform Civil Procedure Rules 2005 (NSW) that would prevent judgment being given in favour of the plaintiff where no defendant is named in the proceedings.

(2) Judgment for the plaintiff for possession of the land comprised in folio identifier 13/1021940 being the land situated at and known as 112 Wallgrove Road, Cecil Park, New South Wales.

(3) Leave to the plaintiff to issue a writ of possession to enforce the judgment of the Court.

Catchwords:

CIVIL PROCEDURE – parties – commencement of proceedings without naming defendant – proceedings for possession of land – where plaintiff was registered proprietor – where land occupied by squatters – order made under r 6.1A UCPR

JUDGMENTS AND ORDERS – default judgment – where no defendant named – where judgment in rem sought – Rules dispensed with

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW) rr 6.1A, 16.4, 36.8

Cases Cited:

GEL Custodians Pty Limited v The Estate of the late Geoffrey Francis Wells [2013] NSWSC 973

International Finance Trust Company Limited & Anor v New South Wales Crime Commission [2008] NSWCA 291; (2008) 251 ALR 479; (2008) 189 A Crim R 559

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Planning Ministerial Corporation (Plaintiff)

Representation:

Counsel:
On the papers

Solicitors:
HWL Ebsworth Lawyers

File Number(s):

2020/173405

Publication restriction:

Nil

Judgment

1. These proceedings claiming possession of land were commenced by leave granted by me on 11 June 2020. The need for leave was because the proposed statement of claim did not name a defendant in the proceedings.

2. The background may be briefly stated. On 9 August 2018 the plaintiff entered into a contract to purchase the property at 112-128 Wallgrove Road, Cecil Park, being the whole of the land in folio identifier 13/1021940. Under the contract for sale the property was to be transferred to the plaintiff with vacant possession. The plaintiff took vacant possession of the land, and on 30 August 2018 became the registered proprietor of the property.

3. The plaintiff has not subsequently entered into a lease of the property or made any other arrangement permitting any person to enter, occupy or remain on the property.

4. On 19 November 2019, when employees of the plaintiff attended at the property, two unidentified persons were in occupation of the property. They asserted they held a lease over the property. They did not disclose their identity to employees of the plaintiff. The police were called, but on being informed by the occupants that they had a lease over the property, the police were not prepared to be further involved in the dispute.

5. In those circumstances, the plaintiff sought leave to commence proceedings for possession without naming a defendant.

6. Rule 6.1A of the Uniform Civil Procedure Rules 2005 (NSW) provides:

6.1A Proceedings that do not require a defendant(cf SCR Part 58, rule 1, Part 70, rule 11, Part 73, rule 4 and Schedule J)

Unless the court otherwise orders, proceedings that may be commenced without joining any person as a defendant include the following -

(a) proceedings under the Adoption Act 2000,

(b) proceedings under section 33 of the Evidence on Commission Act 1995,

(c) proceedings under the Jury Act 1977,

(d) proceedings under section 17 of the Witness Protection Act 1995,

(e) proceedings under rule 55.9.

7. As can be seen, the proceedings identified in that Rule are not the exclusive situations where proceedings may be commenced without naming a defendant. In International Finance Trust Company Limited & Anor v New South Wales Crime Commission [2008] NSWCA 291; (2008) 251 ALR 479; (2008) 189 A Crim R 559, McClellan CJ at CL (with whom Allsop P and Beazley JA agreed as to this aspect) said at [143]:

Rule 6.1A of the UCPR lists various types of proceedings which may be commenced without a defendant. However, it does not otherwise prohibit proceedings where a defendant is not named. Proceedings under the Act [ the Criminal Assets Recovery Act 1990 (NSW)] are not included in the Rule. In this case the names of the owners of the interests in the property in question were not known to the respondent. However, the purpose of the proceedings is to restrain the disposition of the relevant property. Although notice of an application for asset forfeiture must be given to a person to whom the application relates (s 22(9)), s 10 does not provide a similar obligation. There will obviously be many cases, of which the present case is one, where the Commission will not be able to identify by name the person with the relevant interest in the property at the time the proceedings are commenced. However, as the restraining order operates in rem it will, if made, be effective to control the property pending the resolution of any forfeiture proceedings. The failure to name individual defendants was not an abuse of process. It must be remembered that in any event the appellants have since each applied to be joined as defendants to the proceedings (see [65] above).

(emphasis added)

8. A writ of possession operates in rem: GEL Custodians Pty Limited v The Estate of the late Geoffrey Francis Wells [2013] NSWSC 973 at [62].

9. In circumstances where occupants of land, who apparently have no authorisation to be on the land, refused to identify themselves, and where the proceedings concern relief which operates in rem, it is appropriate for the Court to make an order under r 6.1A permitting the commencement of proceedings without joining any person as a defendant.

10. On 11 June 2020 I made orders for copies of the statement of claim together with a Notice to Occupier to be left on the land by three different methods. Those documents were duly served on 17 June 2020. The evidence discloses that when process server returned to the land on 18 June 2020, the envelopes containing the served documents, which had been attached to the front gate and left on the land, had been removed.

11. No person sought to be joined as a defendant to the proceedings in accordance with what was set out in the Notice to Occupier. Any such application is required to made within 10 days of service of the process.

12. The plaintiff subsequently applied for default judgment. The provisions of Pt 16 of the Rules assume the existence of a defendant as a party to the proceedings for the obtaining of default judgment. Rules 16.4 and 36.8 require the filing of an affidavit where judgment for possession is sought against a defendant in his, her or its absence, and those Rules also assume the existence of a defendant as a party.

13. On 9 July 2020 I directed that a suitably modified form of the affidavit required under those Rules was to be filed if default judgment was to be obtained. Such an affidavit was duly filed.

14. I am satisfied on the basis of that affidavit of the plaintiff’s right to possession of the land, and that appropriate attempts have been made to bring the existence of the proceedings to the attention of those in occupation of the land. Accordingly, the Rules should be dispensed with, to the extent that they prevent default judgment being obtained in the absence of a defendant in the proceedings.

15. The plaintiff also seeks costs associated with the proceedings. It is neither appropriate nor practical to make any order for costs against unidentified persons.

16. Accordingly, I make the following orders:

1. Dispense with any provision in the Uniform Civil Procedure Rules 2005 (NSW) that would prevent judgment being given in favour of the plaintiff where no defendant is named in the proceedings.

2. Judgment for the plaintiff for possession of the land comprised in folio identifier 13/1021940 being the land situated at and known as 112 Wallgrove Road, Cecil Park, New South Wales.

3. Leave to the plaintiff to issue a writ of possession to enforce the judgment of the Court.

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Decision last updated: 16 July 2020