C88 Project Pty Ltd (In Liquidation) (Controller Appointed) v The Occupier
[2023] NSWSC 135
•02 March 2023
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: C88 Project Pty Ltd (In Liquidation) (Controller Appointed) v The Occupier [2023] NSWSC 135 Hearing dates: 2 March 2023 Date of orders: 2 March 2023 Decision date: 02 March 2023 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 the certificate of title reference 264/SP90944, being the land situated at and known as Unit 412, 2 Thallon Street, Carlingford, NSW 2118.
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 a defendant – proceedings for possession of land – where plaintiff is registered proprietor – where unidentified person in occupation
LAND LAW – possession of land – where possession sought by registered proprietor against unidentified squatter
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) r 6.1A
Cases Cited: Application by the Planning Ministerial Corporation [2020] NSWSC 903
GEL Custodians Pty Limited v the Estate of the Late Geoffrey Frances Wells [2013] NSWSC 973
Texts Cited: Nil
Category: Procedural rulings Parties: C88 Project Pty Ltd (In Liquidation) (Controller Appointed)
The Occupier (Defendant)Representation: Counsel:
Solicitors:
T Jonker (Plaintiff)
No appearance (Defendant)
Macpherson Kelley Pty Ltd (Plaintiff)
Unrepresented (Defendant)
File Number(s): 2022/243206 Publication restriction: Nil
Judgment
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The plaintiff is the owner of unit 412, 2 Thallon Street Carlingford (“the premises”). The plaintiff is in liquidation and these proceedings, which commenced on 17 August 2022, have been brought by the liquidator of the plaintiff.
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It became apparent to the liquidator at some time during 2022 that the premises were occupied by a person known only as "Tom". A number of enquiries were made, but conflicting information was obtained. There was evidence to suggest that Tom may be an employee of a company called Best Metal Pty Limited, which was said to be owed a large number of money from another company called Dyldam Developments Pty Limited, alternatively, that Tom was a subcontractor who was owed money by Dyldam, and was occupying the premises until he was paid. These companies appear to have been involved in the development and building of the building in which the premises are located.
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Other information from solicitors acting for Best Metal was that possession of the premises had been given to Best Metal by a director of C88 Project Pty Limited. No attempt was made by Best Metal to be joined as a defendant to the proceedings.
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The liquidator has not been able to identify the occupier of the premises. The proceedings were therefore commenced naming the defendant as "The Occupier of the Premises".
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A copy of the statement of claim and a copy of a notice to occupier were served on the occupier on 25 August 2022 by leaving them in the mailbox of unit 412 at the building. The building was described by the process server as a secure unit built with intercom access only. The process server was unable to gain access to the building, and received no response when he rang the intercom for unit 412.
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The plaintiff sought default judgment when no defence was filed, but the matter was referred to me because of the unusual position in that a proper defendant was not named in the proceedings.
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When the matter came before me on 24 February 2023 I granted leave nunc pro tunc for the plaintiff to commence the proceedings in the circumstances where no identified defendant had been named. I also directed that the occupier known as “Tom” was to be informed by an SMS being sent to a mobile phone which was known that the occupier Tom used.
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Leave to commence the proceedings nunc pro tunc was granted on the basis of what I decided in Application by the Planning Ministerial Corporation [2020] NSWSC 903 at [9], and, in line with my determination in GEL Custodians Pty Limited v the Estate of the Late Geoffrey Frances Wells [2013] NSWSC 973 at [62] that possession proceedings are proceedings in rem. Rule 6.1A of the Uniform Civil Procedure Rules 2005 (NSW) permits the commencement of the proceedings without naming a defendant in possession proceedings in a case such as the present where it has not been possible to ascertain the name or identity of the occupier. It was not necessary to name the occupier in the way the plaintiff has done so in the present proceedings or, indeed, to name any defendant.
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Proof has now been provided that the SMS was sent on 24 February 2023. The SMS notified the occupier that on 25 August 2022 a statement of claim and a notice to occupier was served on the occupier of unit 412 by being left in the letter box. The SMS also notified him that the proceedings were listed at 9.30 this morning. There was no appearance by the occupier or on his behalf.
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I am satisfied in the circumstances that the occupier has no right to be in occupation of the premises and that the liquidator, as the liquidator of the plaintiff, the registered proprietor, has an immediate right to possession of the land.
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In the circumstances I make the following orders:
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.
Judgment for the plaintiff for possession of the land comprised in the certificate of title reference 264/SP90944, being the land situated at and known as Unit 412, 2 Thallon Street, Carlingford, NSW 2118.
Leave to the plaintiff to issue a writ of possession to enforce the judgment of the Court.
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The plaintiff appropriately does not seek an order for costs and, following what I said in the Application by the Planning Ministerial Corporation at [15], no order for costs should be made.
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Amendments
06 March 2023 - Typographical error in name of plaintiff on title page and [3].
06 March 2023 - Typographical error in name of plaintiff on title page and [3].
Decision last updated: 06 March 2023
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