GEL Custodians Pty Limited v The Estate of the late Paul Thomas Hussey
[2013] NSWSC 974
•02 August 2013
Supreme Court
New South Wales
Medium Neutral Citation: GEL Custodians Pty Limited v The Estate of the late Paul Thomas Hussey [2013] NSWSC 974 Hearing dates: 19 July 2013 Decision date: 02 August 2013 Jurisdiction: Common Law Before: Davies J Decision: Notice of Motion filed 11 June 2013 dismissed
Catchwords: PROCEDURE - parties - identity of proper defendant - claim for possession of land for mortgage default - mortgagor dies after default and before proceedings commenced - deceased dies intestate - no representation in the deceased estate - whether NSW Trustee and Guardian is proper defendant - s 61 Probate and Administration Act - persons interested in the estate - whether ancillary orders should be made giving notice of proceedings Legislation Cited: Civil Procedure Act 2005
National Credit Code
Probate and Administration Act 1898
Real Property Act 1900
Uniform Civil Procedure RulesCases Cited: GEL Custodians Pty Limited v The Estate of the late Geoffrey Francis Wells [2013] NSWSC 973 Category: Interlocutory applications Parties: GEL Custodians Pty Limited (Plaintiff)
The Estate of the late Paul Thomas Hussey (Defendant)Representation: Counsel:
Michael Collins (Plaintiff)
No appearance (Defendant)
Solicitors:
Gadens Lawyers (Plaintiff)
No appearance (Defendant)
File Number(s): 2012/353675
Judgment
This judgment concerns the procedure to be followed in a claim for possession of land where the registered proprietor has died and there is no representative of the deceased's estate. This judgment should be read in conjunction with my judgment in GEL Custodians Pty Limited v The Estate of the late Geoffrey Francis Wells [2013] NSWSC 973.
On 13 June 2007 Paul Thomas Hussey entered into a loan agreement with the Plaintiff to borrow $150,000. The loan was secured by mortgage over the property known as 3/374 Beach Road, Batehaven.
The deceased died on 28 November 2011. Thereafter the loan fell into default.
On 28 September 2012 a notice pursuant to s 57(2)(b) Real Property Act 1900 was served on the NSW Trustee and Guardian.
The Plaintiff commenced the proceedings on 13 November 2012. The Defendant was said to be "The Estate of the Late Paul Thomas Hussey". Service of the Statement of Claim was effected by leaving a copy of the Statement of Claim and a Notice to Occupier on the land and by serving the Statement of Claim on the NSW Trustee and Guardian.
In response to that service the NSW Trustee and Guardian wrote to the Plaintiff's solicitors saying that they had no record of the matter and that they did not administer the estate. They acknowledged service of the Statement of Claim pursuant to s 61 of the Probate and Administration Act 1898.
On 12 February 2013, when no defence was filed by any person, the Plaintiff obtained default judgment for possession of the land and in the sum of $156,145.73. Thereafter an application was made for the issue of a writ of possession.
On 1 March 2013 the Court issued a Notice of Requisition outlining the Registrar's proposal to set aside the judgment on the basis that there had not been service on a representative of the deceased estate. Correspondence ensued between the Plaintiff's solicitor and the Registrar.
On 15 April 2013 the Registrar set aside default judgment given on 12 February 2013 and dismissed the Notice of Motion filed 25 February 2013 for the issue of a writ of possession. Subsequently on 13 May 2013 the Registrar provided reasons for that decision which were relevantly identical to those given in relation to Wells. I have set out the relevant portion of those reasons in Wells at [8].
On 11 June 2013 the Plaintiff filed a Motion seeking a review of the Registrar's order to the effect that default judgment be set aside only to the extent that it constituted a judgment other than a judgment for possession of land. It was that Notice of Motion that came before me for hearing.
The evidence disclosed that the deceased died leaving a widow and three adult children. The address of the widow in the Death Notice was said to be 23 Ettalong Road, Greystanes.
The Plaintiff's solicitor ascertained that the widow was making an application for letters of administration, presumably on the deceased's intestacy. The Plaintiff's solicitor wrote to the solicitors acting for the widow on that application, Button Hawdon & McMahon, and served a copy of the present Notice of Motion upon them. In addition, the Plaintiff's solicitors served a copy of the Notice of Motion on the NSW Trustee and Guardian.
On 11 July 2013 Button Hawdon & McMahon wrote to the Plaintiff's solicitors saying that they no longer acted on behalf of the widow and that they were making arrangements to file a Notice of Ceasing Act in respect of the application for a grant of representation in the deceased's estate.
They also expressed the view that the service of the Notice of Motion was not valid service because they had not undertaken to accept service on her behalf and that r 18.5 UCPR required personal service. There was no indication given by them whether they had notified the widow of the Notice of Motion and the date for its hearing. In any event, there was no appearance by anyone at the hearing of the Motion other than the Plaintiff.
In Wells, I concluded at [63] that the proper defendant in a claim for possession of land where the person against whom the order would have been sought has died and no grant has been made in their estate is the NSW Trustee and Guardian.
In the present proceedings there is one point of distinction with the facts in Wells. In Wells the evidence tended to suggest that the NSW Trustee and Guardian was named as executor in the will of the deceased. That is not so in the present case. I do not consider that such a difference results in a different conclusion. In Wells the identity of the executor was considered only in the context of s 56 Civil Procedure Act 2005 and whether further orders should be made to bring the proceedings to the attention of any person who might have an interest in the estate of the deceased.
In the present case the Notice to Occupier and originating process were properly served by being left on the land. In addition, the Plaintiff's solicitor gave notice to solicitors ascertained to be acting for the widow who was making an application for a grant of letters of administration. However, those solicitors have now ceased to act, and in disputing that there had been valid service of the Notice of Motion they do not say whether or not they notified their former client notwithstanding the alleged invalid service.
Consideration may need to be given, therefore to whether any further orders will need to be made after the proceedings are amended to name the NSW Trustee and Guardian as defendant.
In the present case, as in Wells, the proceedings did not name the NSW Trustee and Guardian as the defendant. They named an entity with no legal existence. In those circumstances the Registrar was correct to set aside the default judgment and refuse the motion for a writ of possession although not for the reasons the Registrar gave.
Accordingly, I dismiss the Notice of Motion filed 11 June 2013.
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Decision last updated: 02 August 2013
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