JP Morgan Trust Australia Ltd v Hammond - [2012] NSWSC 213

Supreme Court

New South Wales

Medium Neutral Citation: JP Morgan Trust Australia Limited v Hammond [2012] NSWSC 213
Hearing dates: 9 March 2012
Decision date: 09 March 2012
Jurisdiction: Common Law
Before: Johnson J
Decision:
Application by Patrick Hammond for leave to appear as lay advocate for the Defendant refused

Catchwords: PRACTICE AND PROCEDURE - claim for possession of land following alleged mortgage default - application by Defendant's husband for leave to appear for her as lay advocate at final hearing - husband to be a witness in proceedings - exceptional nature of order sought - need for good grounds to be demonstrated - conflict of interest between Defendant and husband - importance of protection of administration of justice - interests of justice - leave refused
Legislation Cited: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005
Cases Cited: Hammond v JP Mortgage Trust Australia Limited [2011] NSWCA 57
Teese v State Bank of New South Wales [2002] NSWCCA 219
Damjanovic v Maley [2002] NSWCA 230; 55 NSWLR 149
Portelli v Goh [2002] NSWSC 997
Perpetual Limited v Kelso [2008] NSWSC 906
Wang v State of New South Wales [2011] NSWSC 609
Kallinicos v Hunt [2005] NSWSC 1181; 64 NSWLR 561
Texts Cited: ---
Category: Interlocutory applications
Parties: JP Morgan Trust Australia Limited (Plaintiff)
Tracie Lynne Hammond (Defendant)
Representation: Mr PT Newton (Plaintiff)
Mr P Hammond (husband of Defendant on application for leave to appear for Defendant)
Kemp Strang (Plaintiff)

File Number(s): 2008/284105
Publication restriction: ---

Judgment

JOHNSON J : This is an application by Patrick Hammond for leave to appear for his wife, Tracie Hammond, in proceedings listed for hearing in this Court on 3 and 4 April 2012.

In those proceedings, commenced by Statement of Claim filed on 22 April 2008 the Plaintiff, JP Morgan Trust Australia Limited, seeks relief against the Defendant, Tracie Hammond, alleging mortgage default and seeking an order for possession of a property at Faulconbridge.

Mr Hammond is not a party to the proceedings.

The proceedings have been before the Court for nearly four years. A range of pleadings have been filed. The current and most recent pleadings include an Amended Defence and Reply filed by the Defendant on 9 September 2011, an Amended Cross-Claim filed on 4 May 2011 (in which Tracie Hammond is the Cross-Claimant and JP Morgan Trust Australia Pty Limited is the Cross-Defendant), a Defence to the Amended Cross-Claim and Reply filed 27 May 2011 and a Reply to the Amended Defence to the Cross-Claim filed 9 July 2011.

The Court has been informed that Tracie Hammond has not attended the Court on any occasion when the matter was listed, although she did attend a mediation which took place at some time prior to 11 March 2011.

The Court record discloses that Patrick Hammond has appeared, by leave, on a variety of occasions during the history of the litigation, before Registrars and Judges in the Common Law Division. He appeared, by leave, on an occasion when, on 11…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NSWSC 213
Decision Date: 09 March 2012

CaseChat Overview and Summary

In the case of JP Morgan Trust Australia Ltd v Hammond, the plaintiff, JP Morgan Trust Australia Ltd, sought possession of land following an alleged default by the defendant, Hammond, on a mortgage. The dispute came before the court for a final hearing. Hammond's husband applied for leave to appear for her as a lay advocate at the final hearing, despite being a witness in the proceedings. The court had to determine whether it was appropriate to grant the husband leave to act as a lay advocate under these circumstances.

The legal issues the court had to decide involved the exceptional nature of the order sought and the need for good grounds to be demonstrated. The court considered the potential conflict of interest between Hammond and her husband, as well as the importance of protecting the administration of justice and the interests of justice. The court had to weigh the husband's application against the potential for a conflict of interest and the risk of compromising the fairness of the proceedings.

The court ultimately refused the husband's application for leave to appear as a lay advocate. The court found that the husband's role as a witness in the proceedings created a significant conflict of interest, which could potentially compromise the fairness of the proceedings. The court emphasised the importance of maintaining the integrity of the administration of justice and the interests of justice. Consequently, the husband was not granted leave to appear as a lay advocate at the final hearing.

No further orders were made by the court in this regard. The final hearing proceeded without the husband acting as a lay advocate for Hammond.

Orders