Gremmer v Gremmer

[2021] NSWSC 896

Supreme Court

New South Wales

Medium Neutral Citation:	Gremmer v Gremmer [2021] NSWSC 896
Hearing dates:	23 July 2021
Date of orders:	23 July 2021
Decision date:	23 July 2021
Jurisdiction:	Common Law
Before:	Lonergan J
Decision:	Orders set out in [11]
Catchwords:	PROCEDURE – referral to pro bono legal service – application granted
Legislation Cited:	Uniform Civil Procedure Rules 2005
Category:	Procedural rulings
Parties:	Erika Gremmer (Plaintiff) Bernd Gremmer (Defendant)
Representation:	Counsel P Wallis (Plaintiff) Self-represented (Defendant) Solicitors Adams Legal (Plaintiff) Self-represented (Defendant)
File Number(s):	2021/12564
Publication restriction:	Nil

REVISED EX TEMPORE Judgment

1. HER HONOUR: These proceedings were commenced on 15 January 2021. The plaintiff seeks an order for judgment for possession of the land at 126 to 128 Breeza Street, Carroll in the State of New South Wales on the basis that she claims that the defendant owes her $235,588.10.

2. She pleads that in 2007, the defendant, Mr Bernd Gremmer, obtained a loan from her and mortgaged his property as security for that loan by a registered mortgage. She says that he is in default of the conditions of that mortgage and so she is entitled to take possession of the property.

3. The defendant filed a Defence on 17 February 2021 and although it was a detailed document, it is difficult to follow. I note Mr Gremmer did not have the assistance of a legal representative to collect his thoughts although I consider the document to be a genuine attempt at setting out in detail the reasons why he says he is not liable to the plaintiff.

4. Because of the unclear nature of the document, I made an order striking it out on 1 July this year and granting leave to the defendant to file and serve an Amended Defence.

5. I note at that directions hearing on 1 July the defendant did not appear. He explains today that he has some health problems, including depression and emphysema.

6. On 22 July 2021 an email was sent to my Associate which a little more succinctly sets out the bases of his defence, namely:

1. time has expired on the debt; it is 12 years and 6 months ago;

2. there was work carried out for the plaintiff worth approximately $170,000 that was not paid for;

3. there are false and misleading statements in the plaintiff's affidavit;

4. he was forced to use the plaintiff's accountants in relation to bankruptcy; and

5. (which seems to be part of the same problem as (4), that his solicitor, Ms Young, who assisted him in defence of the bankruptcy was used by the plaintiff in this case against him

7. Mr Gremmer in that email also notes he wishes to make application to the Court for pro bono legal assistance to help him with his defence and with that assistance he is prepared to undertake to file a further Defence that addresses those issues.

8. Under r 7.36 of the Uniform Civil Procedure Rules, the Court can make a referral to a barrister or solicitor if it is satisfied it is in the interests of the administration of justice to do that. I am required to take into account under sub-rule 2 the means of the litigant, the capacity of the litigant to obtain legal assistance outside the scheme, the nature and complexity of the proceedings and anything else I consider appropriate.

9. I am satisfied, having regard to what Mr Gremmer has told me, that he would have difficulty paying for a lawyer to assist him given he is living on an aged pension. I consider that the litigation is one that has some complexity in that the amount of detail that needs to be included in a Defence needs to be marshalled in a way that is easier for the Court to understand and for the parties to narrow the issues to relevant ones.

10. In my view it is in the interests of justice to make an order referring Mr Gremmer for pro bono legal assistance in accordance with this rule.

11. I therefore make the following orders:

1. The defendant, Bernd Gremmer, is referred to the Registrar for referral to a solicitor or barrister on the pro bono panel for legal assistance including advice in relation to his Defence and the prospects of success of it and the drafting of it, as well as, if appropriate, ongoing assistance with representation.

2. The defendant has leave to file and serve an Amended Defence on or before Friday 17 September 2021.

3. I list the matter for directions before me at 9am on Friday 24 September 2021.

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Decision last updated: 23 July 2021