Australia and New Zealand Banking Group Limited v Desmond Patrick John Last - [2014] NSWSC 1719

Supreme Court

New South Wales

Medium Neutral Citation: Australia and New Zealand Banking Group Limited v Desmond Patrick John Last [2014] NSWSC 1719
Hearing dates: 2 December 2014
Date of orders: 02 December 2014
Decision date: 02 December 2014
Jurisdiction: Equity Division
Before: Brereton J
Decision:
Declare that defendant is a missing person and order that identified parts of his estate be subject to management by the NSW Trustee.

Catchwords: SUCCESSION – executors and administrators – management of estate of missing person by NSW Trustee – whether order should be made to commit the estate to management – whether defendant ‘missing’ – whether alternatives to management preferable – whether mortgagee has standing to seek order – held, order made for management
Legislation Cited: (NSW) NSW Trustee and Guardian Act 2009, s 40, s 54
(NSW) Trustee Act 1925, Pt 4, s 47(1)
(NSW) Uniform Civil Procedure Rules 2005, r 57.3(2), r 57.5
Category: Procedural and other rulings
Parties: Australia and New Zealand Banking Group Limited ACN 005 357 522 (plaintiff)
Desmond Patrick John Last (defendant)
Representation:
Counsel:
T D Castle (plaintiff)
Solicitors:

File Number(s): 2014/355142

Judgment (ex tempore)

HIS HONOUR: The defendant Desmond Patrick John Last was the registered proprietor of 23 Boundary Street, Darlington, and remains the registered proprietor of 1/1 Sallywattle Drive, Suffolk Park in the State of New South Wales, subject to mortgages to the plaintiff Australia and New Zealand Banking Group Ltd granted in 2010 as security for advances by the bank to Mr Last. In about 2012, Mr Last defaulted on the mortgages, and the bank commenced proceedings to recover the debt and obtain possession of the properties. Although it seems that the statement of claim was served personally on Mr Last, no defence was filed, and the bank obtained a default judgment for possession of both properties and the outstanding amount of the loans. Under the judgment, it caused writs of possession to issue, and obtained possession of both properties. It sold the Darlington property as mortgagee, and obtained on the sale a price higher than had been anticipated and which sufficed to discharge the whole of the debt due by Mr Last to the bank. As a result, the bank now holds surplus from the proceeds of the Darlington sale which are payable to Mr Last, and also has possession of the Suffolk Park property which remains in Mr Last's name, and the Court is informed, although the evidence does not establish, that certain personal property of Mr Last has been placed in storage – presumably as a result of the execution of one or other of the writs for possession.
The bank has undertaken a number of endeavours to locate Mr Last, all of them without success. The evidence suggests that Mr Last may have issues and is withdrawn and secretive. Searches of the White Pages, ABN Lookup, Google, Person Lookup and FCS Online have not located him. His former business premises are closed. and his former business associates and accountant have not heard from him for well in excess of a year.
It may be that persons interested in his estate and relatives could be ascertained by further searches which have not yet been undertaken including a next of kin search, but at this stage reasonable enquiries to ascertain his whereabouts have all been unproductive.
By summons, leave to file which in Court is sought today, the bank seeks an order pursuant to (NSW) NSW Trustee and Guardian Act 2009, s 54, declaring Mr Last to be a missing person, and that his estate be subject to management and committing his estate to the management of the NSW Trustee and Guardian. In anticipation of the application, the bank approached the NSW Trustee and Guardian, which responded that it would abide by the orders of the Court and saw no need for an appearance today, but would be available if the need arose. It may be inferred from that, that the Trustee and Guardian has no objection to the proposed appointment.
NSW Trustee and Guardian Act, s 54, provides as follows:

54 Declaration and order where person missing
(1) The Supreme Court may:
(a) declare that a person is a missing person and order that the estate of the person (or any part of it) be subject to management under this Act, and
(b) by order appoint a suitable person as manager of the estate of the person or commit the management of the estate of the person to the NSW Trustee.

(2) A declaration and order may be made for the estate of a person under this section only if the Supreme Court is satisfied that:
(a) the person is a missing person, and
(b) it is not known whether the person is alive, and
(c) all reasonable efforts have been made to locate the person, and
(d) the person’s usual place of residence is in this State, and
(e) persons residing at the place where the person was last known to reside, or relatives or friends, with whom the person would be likely to communicate, have not heard from, or of, the person for at least 90 days, and
(f) it is in the best interests of the person to do so.

(3) An application for a declaration and order under this section in relation to a person may be made by any of the following persons:
(a) the spouse or de facto partner of the person,
(b) a relative of the person,
(c) a business partner or employee of the person,
(d) the Attorney General,
(e) the NSW Trustee,
(f) any other person who has an interest in the estate of the person.

(4) On the hearing of an application for the purposes of this section, evidence may be given to the Supreme Court in such form and in accordance with such procedures as the Court thinks fit.

As s 54(1) indicates, the estate of the person may be made subject to management in whole or in part. That reflects the provisions of s 40, which provides that an order may be made under the relevant chapter of the Act for the management of the whole or part of the estate of a person.
So far as the researches of counsel and the Court in the limited available time have been able to ascertain, there is no definition of "missing person" for the purposes of s 54, nor any authority on the question. As will be apparent from s 54(2), however, the Court must be satisfied of a number of matters before it can make an order under s 54(1).
The unsuccessful enquiries made so far by the bank satisfy me that Mr Last is a missing person for the purposes of s 54(2)(a). The evidence does not establish with any degree of certainty that he is alive or dead, and therefore, the requirement of s 54(2)(b), namely, that "it is not known whether the person is alive", is also satisfied.
It seems to me that all reasonable efforts in the circumstances have been made to locate Mr Last. What are reasonable efforts necessarily depends on the circumstances of the case. Given that he was a man who appears to have owned substantial real property and had business associates and an accountant, none of whom are now able to say where he is, the inquiries made seem to me to be reasonable efforts in the circumstances.
Mr Last's usual place of residence appears to have been either the Darlington property or the Suffolk Park property, both of which are in New South Wales. It is not clear that any persons reside at the place where he was last known to reside, and in any event, it is some years since he has been ejected from those premises. However, those persons with whom he might be likely to communicate, being his business associates, a former employee and an accountant, have not heard from him for well in excess of the ninety days referred to in s 54(2)(e).
There are a number of potential alternatives to appointment of a manager under s 54. The bank as trustee of the surplus and probably also of the Suffolk Park property, would be entitled to pay the surplus and transfer the securities into Court under the provisions of (NSW) Trustee Act 1925, Pt 4, and thus obtain a discharge.
So far as concerns at least the moneys, though probably not the land, the bank would be able to pay the moneys to the NSW Trustee and Guardian under Trustee Act, s 47(1), which provides where any money is held in trust for a person who cannot be found, the trustee may pay the money to the NSW Trustee and Guardian.
An alternative identified by the bank was the appointment of a receiver and manager of the Suffolk Park property in order to safeguard it in the meantime. A potential receiver has been approached, and indicated his consent to an appointment at a cost of $15,000 - $18,000 per annum for so acting.
It seems to me that for the purposes of s 54(2)(f), by far the best course in the interests of Mr Last and his estate is the appointment of NSW Trustee and Guardian as manager, rather than leaving the assets to languish in the custody of the Court or to be eroded by the efforts of a receiver and manager.
Some urgency is attached to the applications and there is some evidence to suggest that vagrants may be occupying or seeking to occupy the Suffolk Park property, and that rubbish has been dumped on that property.
As I have said, the Act provides for an order to be made in respect of part or whole of the estate of the missing person. It is conceivable that Mr Last is alive and if not well, at least living, and that he has other property not referred to in the evidence and not known to the Court which he may be accessing and using on a daily basis. There is no need, at least at this stage, for any appointment to extend to such property, if it exists, and it seems to me that the order ought to be limited to the property to which I have referred, of which the bank has control.
Subject then to the question of standing, I would be satisfied that an order should be made.
So far as standing is concerned, s 54(3) identifies those who have standing to make an application for an order under s 54. The plaintiff relies on s 54(3)(f): "Any other person who has an interest in the estate of the person".
While, at first, it seemed to me doubtful that a mortgagee whose loan had been repaid had an interest in the estate of the mortgagor, the fact is that the mortgagee retains a registered mortgage over the property and is in possession of the property, and that seems to fall within s 54(3)(f).
Accordingly, I am satisfied that the application is made by the Bank as a person who has an interest at present in the estate of Mr Last. I can take some additional comfort in the circumstance that the NSW Trustee and Guardian would have standing under s 54(3)(e) to make the application, and its effective consent to the appointment communicated by its email to the plaintiff's solicitor this morning would suggest that it might well be prepared nominally to add its name to the application if that were required.
(NSW) Uniform Civil Procedure Rules 2005, r 57.3(2), provides that, on an application under NSW Trustee and Guardian Act, s 54, the person in respect of whom the application is made must be made a defendant but need not be served. It is difficult to see how an application that is founded on the person being a missing person could be served.
Rule 57.5 makes provision in respect of the evidence in support of such an application, but subparagraphs (a) and (b) do not apply to an application under s 54 by virtue of sub rule (2), and subparagraphs (1)(c) and (d) do not apply where, as here, the proposed manager is the New South Wales Trustee and Guardian.
Upon the undertaking of the plaintiff's solicitor Gerard Murphy to pay the appropriate filing fees, I grant leave to the plaintiff to file a summons in the form initialled by me, dated this day and placed with the papers. I direct that the summons be returnable instanter. I dispense with service of the summons.
The Court declares:

pursuant to the NSW Trustee and Guardian Act, s 54(1)(a), that the defendant Desmond Patrick John Last is a missing person.

The Court orders that:

pursuant to NSW Trustee and Guardian Act, s 54(1)(a), part of the estate of the defendant as is described in the Schedule be subject to management under the Act.

pursuant to NSW Trustee and Guardian Act, s 54(1)(b), management of that part of the estate of the defendant be committed to the NSW Trustee.

the plaintiff's costs on the indemnity basis be paid out of the defendant's estate.

All parties be at liberty to apply as they may be advised.

Schedule

The land situate at and known as 1/1 Sallywattle Drive, Suffolk Park in the State New South Wales being the land comprised in folio identifier 1/SP61214;
The surplus proceeds of sale of the land situate and known as 23 Boundary Street, Darlington in the New South Wales being the land comprised in folio identifier 2/730135 in the possession of the plaintiff;
All personal property of the defendant that has been placed into storage by the plaintiff.

These orders are to be entered forthwith.

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Decision last updated: 20 March 2015

Medium Neutral Citation:	Australia and New Zealand Banking Group Limited v Desmond Patrick John Last [2014] NSWSC 1719
Hearing dates:	2 December 2014
Date of orders:	02 December 2014
Decision date:	02 December 2014
Jurisdiction:	Equity Division
Before:	Brereton J
Decision:	Declare that defendant is a missing person and order that identified parts of his estate be subject to management by the NSW Trustee.
Catchwords:	SUCCESSION – executors and administrators – management of estate of missing person by NSW Trustee – whether order should be made to commit the estate to management – whether defendant ‘missing’ – whether alternatives to management preferable – whether mortgagee has standing to seek order – held, order made for management
Legislation Cited:	(NSW) NSW Trustee and Guardian Act 2009, s 40, s 54 (NSW) Trustee Act 1925, Pt 4, s 47(1) (NSW) Uniform Civil Procedure Rules 2005, r 57.3(2), r 57.5
Category:	Procedural and other rulings
Parties:	Australia and New Zealand Banking Group Limited ACN 005 357 522 (plaintiff) Desmond Patrick John Last (defendant)
Representation:	Counsel: T D Castle (plaintiff) Solicitors:
File Number(s):	2014/355142