Armstrong by her tutor New South Wales Trustee and Guardian v Armstrong

[2015] NSWSC 1884

Supreme Court

New South Wales

Medium Neutral Citation:

Armstrong by her tutor New South Wales Trustee and Guardian v Armstrong [2015] NSWSC 1884

Hearing dates:

09 December 2015

Decision date:

09 December 2015

Jurisdiction:

Common Law

Before:

Adams J

Decision:

1. Leave granted to Mr Steve O’Connor to file a Notice of Ceasing to Act.

 

2. Judgment for the plaintiff for possession of the land contained in Certificate of Title Folio Identifier 6/SP51718 and known as 6/39 Railway Parade, Blackalls Park, New South Wales 2283.

 

3. Leave granted to issue a writ of possession forthwith.

 4. Defendant to pay the plaintiff’s costs.

Category:

Principal judgment

Parties:

Loraine Armstrong by her tutor New South Wales Guardian and Trustee (plaintiff)
Mark Armstrong (defendant)

Representation:

Counsel:
K Burko (plaintiff)

  Solicitors:
Shaw McDonald Lawyers (plaintiff)
No appearance (defendant)

File Number(s):

2014/215603

Judgment

1. The plaintiff, seeks judgment for possession of land contained in Certificate of Title Folio Identifier 6/SP51718 being the property known as 6/39 Railway Parade, Blackalls Park, New South Wales and leave to issue a writ of possession forthwith. The statement of claim alleges that the defendant, who is the defendant’s son, is presently in possession of the unit. The plaintiff suffers from a brain illness causing cognitive impairment and giving rise to a need for lifelong care. Presently, her affairs are managed by the New South Wales Trustee and Guardian who is her tutor. There is no issue that the trustee is validly appointed.

2. The statement of claim alleges that the plaintiff is the registered proprietor of the property and seeks possession, indeed, it also explains why it is needed. The defendant filed a defence which can be briefly summarised as explaining why he thinks it is better that he remain in occupancy of the unit to take care of his mother. It does not provide any defence in the sense of asserting some right, title or interest capable of defeating the right of the registered proprietor to possession.

3. The defendant was at one stage represented by a solicitor from the Legal Aid Commission. However, today I have given that solicitor leave to withdraw since, despite continual attempts of that solicitor to obtain instructions from the defendant, none have been forthcoming.

4. On behalf of the plaintiff, an affidavit was read which annexed, amongst other things, a copy a title search establishing that the plaintiff is the registered proprietor. It is plain there is no defence to the claim of the plaintiff. It follows that judgment must be given in her favour. Accordingly, I make the following orders –

1. Leave granted to Mr Steve O’Connor to file a Notice of Ceasing to Act.

2. Judgment for the plaintiff for possession of the land contained in Certificate of Title Folio Identifier 6/SP51718 and known as 6/39 Railway Parade, Blackalls Park, New South Wales 2283.

3. Leave granted to issue a writ of possession forthwith.

4. Defendant to pay the plaintiff’s costs.

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Decision last updated: 10 December 2015