Larry Charles Tomkins v Josephine Tomkins

[2005] NSWSC 291

CITATION:	Larry Charles Tomkins v Josephine Tomkins [2005] NSWSC 291
HEARING DATE(S):	24 March 2005
JUDGMENT DATE :	24 March 2005
JURISDICTION:	Equity Division
JUDGMENT OF:	Einstein J
DECISION:	Trustees for sale appointed.

CATCHWORDS:	Appointment of trustees for sale - Possessory title
LEGISLATION CITED:	Real Property Act 1900
PARTIES:	Larry Charles Tomkins (Plaintiff) Josephine Tomkins (Defendant)
FILE NUMBER(S):	SC 6779/04
COUNSEL:	Mr R Steele (Plaintiff) No appearance
SOLICITORS:	Smith Dunlop (Plaintiff)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Einstein J

Thursday 24 March 2005 ex tempore
Revised 5 April 2005

6779/04 Larry Thomas Tomkins v Josephone Tomkins

JUDGMENT

1 There is before the Court a summons filed on 16 December 2004 whereunder the plaintiff, Mr Larry Thomas Tomkins, seeks orders against the defendant, Ms Josephine Tomkins. The summons seeks an order for the appointment of trustees for sale of, firstly, the property known as lots 1 and 2 Dulwich Place, Camberwell, being the whole of the land contained in lots 1-2 SEC.8-DP758214 in folio: Auto Consol 15520-128 in the State of New South Wales.

2 The order sought is also the appointment of trustees for sale of a parcel of land described as lot 101 Dulwich Place, Camberwell, being the whole of the land contained in lot 101 in DP816072 in the State of New South Wales. I shall refer to lots 1 and 2 as the first lots and to lot 101 as the second lot.

3 The plaintiff claims a declaration that the proceeds from the sale of both the first lots as well as the second lot be vested in the trustees upon trust for the plaintiff.

4 The evidence in support of the summons comprises an affidavit by the plaintiff of 24 November 2004 in which the evidence is that what I have described as the first lots were purchased by the plaintiff in the joint names of himself and the respondent in 1979 from his own funds, assisted by a loan from his brother, Mr Michael Tomkins, which he subsequently repaid. At the time he was living in a de facto relationship with the respondent, which relationship ended in late 1991.

5 The evidence is that the respondent made no financial contribution to the acquisition of the property comprising the first lots. Further evidence given by the plaintiff is that during the de facto relationship and thereafter, he has maintained and preserved the property by renovating the house in fashion described in para 3 of his affidavit, by establishing, improving and maintaining the gardens and lawns and that he has continued to maintain the rates for the properties since separation.

6 His further evidence is that the house is empty, that he wishes to sell the property and that a sale of the land was negotiated for some $60,000 early in the year, described as “last year” in his affidavit of November 2004.

7 Mr Tomkins has also given evidence in the same affidavit concerning what I have described as the second lot, which is owned as joint tenant with the defendant. The evidence is that the title to the second lot was acquired by a possessory primary application and registered in their joint names on 20 September 1993 and that the legal costs of the application were paid by him, as did he also pay for the costs of the land being surveyed and fenced and that during the period of his relationship with Josephine Tomkins the land was used to run a few cattle.

8 Annexed to the affidavit of Mr Tomkins of 24 November 2004 are a number of letters sent by Smith Dunlop, lawyers for the plaintiff, to Mrs Tomkins from 16 October 2003, 24 October 2003 and 17 November 2003, seeking for her to execute a contract for sale of the jointly owned property, without any response being received.

9 The annexures continue into correspondence between Smith Dunlop and Mr Bruce Foat, solicitor, of 15 April 2004, Mr Foat apparently believed to have received instructions to act for Mrs Tomkins back in early 2001. The further correspondence from Burgess Foat, Solicitors of 20 April 2004 and from Smith Dunlop to that firm of 14 July 2004 and the final letter from Burgess Foat of 19 July 2004 prove that Mr Foat was unable to succeed in his efforts to have Ms Tomkins contact him or to give him instructions so that the final letter indicated that his firm no longer received any instructions from Ms Tomkins and could not assist as to her whereabouts.

10 There is also before the Court an affidavit of service by Mr Bruce Aulich of 11 January 2005 dealing with the events of 10 January 2005 when he swears that he served Josephine Tomkins with a sealed copy of the summons and an affidavit in support by attaching them to the front door of 1/49 Nesca Parade, The Hill, Newcastle. His affidavit makes clear that at the time of service he asked the person served whether she was Josephine Tomkins, the person mentioned in the summons, to be informed, “No, she is away until the end of the month.”

11 He then asked whether the person to whom he was speaking could provide identification to prove who she was, telling her that her neighbour had confirmed that Josephine Tomkins lived at that place by herself. The person to whom he was speaking said she was not showing him any identification and would like him to leave. She said she was not Josephine Tomkins, in answer to a question to that effect. The process server said he believed she was and drew her attention to the summons. He said he was informed she lived alone at the address. The person to whom he was speaking then slammed the door and he attached the documents to the front door.

12 The attachments to the affidavit of service were the summons and the affidavit of Mr Tomkins of 24 November 2004, to which I have already adverted.

13 Also before the Court is a further affidavit by Mr Tomkins of 8 March 2005 in which he deposed that he has a daughter, Serena Tomkins, with the defendant and that Serena and her two children reside with him. He deposed that in about May 2004 he spoke with his daughter regarding the whereabouts of Ms Tomkins and asked whether she still lived at unit 1/49 Nesca Parade, The Hill, Newcastle, to be informed “Yes”. He asked about the telephone number of the respondent, to be told that it was “0415 403 678”.

14 He also deposed that in about November 2004 Serena and her two children came to live with him and that immediately before moving in she and the children went to visit the respondent. When they had returned Serena was asked by the applicant/plaintiff, “Is your mother still living at unit 1/49 Nesca Parade, The Hill, Newcastle?” which question was answered in the affirmative and a further question about whether the same mobile number was held by Ms Tomkins was also answered in the affirmative.

15 His evidence is that his daughter said, “I tried to speak with her about the sale of the land at Camberwell. She told me that she didn’t want to talk about it.” He also gave evidence that to his knowledge Ms Tomkins had not been absent from Australia for any extended period of time in the previous two years.

16 There is also before the Court, annexed to an affidavit by Kasie Maher, solicitor for the plaintiff, a letter from Smith Dunlop to Ms Tomkins of 1 March 2005 communicating the fact that the proceedings were listed for an ex parte hearing on 11 March 2005 and the fact of the orders being sought and asking for advice as to whether she would be represented at the hearing.

17 Also before the Court is an affidavit of 10 March 2005 by Renee Lynch, receptionist of Smith Dunlop, Lawyers, who swears that on 10 March 2005 she answered a call and the person on the line said, “It’s Josephine Tomkins speaking. I have received a letter from you,” and giving the reference. Ms Lynch responded, “How can I help you?” and the caller said, “I can’t come to court tomorrow.” Ms Lynch then said, “Is there a contact number we can reach you on if we need to contact you?” The caller said, “I am leaving on a train and there is no contact number.” Ms Lynch believes Ms Tomkins was calling from a mobile telephone on a bad line.

18 Also before the Court is a further affidavit of Ms Maher of 16 March annexing Smith Dunlop’s letter to Ms Tomkins’ of 16 March which stated, inter alia, that the proceedings were adjourned on Thursday 24 March for an ex party hearing and that the plaintiff’s solicitors were instructed to proceed in her absence on that date.

19 There is also before the Court a form of consent by Peter Dunlop, solicitor, consenting to being appointed to act as a trustee, if appointed, and a form of consent also by Mr Henry Milton Bailey consenting to appointment as trustee, if appointed, and there are also before the Court affidavits verifying those two consents, in the form of affidavit of Kasie Mather of 7 March 2005.

20 I am satisfied in all the circumstances that the plaintiff has proved his case, entitling him to the order appointing trustees for sale of what I have referred to as the first lots and entitling him to a declaration that the proceeds from the sale of what I have called the first lots should be vested in the trustees to be appointed upon trust for him.

21 The evidence is unequivocal in terms of evidence by which the Court may be satisfied that such a trust exists and in that regard the evidence is also, it seems to me, clearly able to be relied upon in support of the proposition that the defendant appears to have no interest in resisting the proceedings.

22 In relation to what I have called the second lot, it seems to me that the position is somewhat different in terms of the procedures which should be adopted by the Court on the claim for the appointment of trustees for sale of that lot and on the claim for a declaration that the proceeds from sale of that lot should be vested in the trustees by the trust for the plaintiff.

23 The reason for the difference is that whereas the first lots were real property title and purchased regularly as already indicated, the evidence concerning what I have called the second lot is that the title to that land was acquired, as I have said, by a possessory primary application registered in the joint names of the parties on 20 September 1993.

24 The position with respect to acquisition of possessory title is that in terms of the material provisions of the Real Property Act 1900 provision is made that persons in possession, complying relevantly with ss 48(b) (c) and (e), are able to obtain grants of possessory applications. It seems to me that the fact that in order to obtain title by possessory primary application it is necessary to establish the material possession over the requisite period of time suggests that the defendant may have grounds for resisting a claim to a declaration that the second lot is held in trust for the plaintiff.

25 For those reasons, to my mind a regular approach to the proceedings, insofar as the summons seeks orders for the appointment of trustees of the second lot and a declaration of the type I have already indicated in relation to the second lot, should be pleaded and dealt with, not by an Equity duty judge but in the regular fashion, being fixed for hearing by an Equity Judge.

26 In those circumstances, the appropriate orders and directions to be given will mean that the plaintiff obtains the orders sought concerning what I have called the first lots but that the summons, insofar as the plaintiff seeks relief concerning the second lot, will be the subject of directions that the plaintiff file and serve points of claim and procure a time-table for filing of a defence and the matter to be fixed for hearing as soon as practicable, but being fixed for hearing regularly.

27 For those reasons, the Court will today make an order which will give costs of and occasioned by the proceedings to date to the applicant/plaintiff, but the proceedings will not have been finally dealt with. The Court gives the following orders and makes the following directions:

1. I order that Henry Milton Bailey and Peter Noel Dunlop be appointed trustees for sale of the property known as lots 1 and 2 Dulwich Place, Camberwell, being the whole of the land contained in lots 1 and 2 SEC.8-DP758214 in folio: Auto Consol 15520-128 in the State of New South Wales.

2. I make a declaration that the proceeds from sale of the lot referred to in order 1 be vested in the proceeds upon trust for the plaintiff.

3. I order that the respondent pay the plaintiff’s costs of these proceedings to date.

4. I direct that the plaintiff, within twenty-eight days, file and serve a statement of claim seeking the relief concerning lot 101 in DP816072 and a declaration as to the proceeds from sale of that lot being vested in the trustees by the trust for the plaintiff.

The proceedings are stood over to the Registrar’s List on 18 April 2005 for the giving of further directions.

I order that the plaintiff procure the service upon the defendant of the judgment delivered today and of the orders and directions given today.

I grant leave to the plaintiff to file in court the affidavits of Rene Michelle Lynch made on 10 March 2005, Kasie Mather made on 8 March 2005, Larry Tomkins made on 8 March 2005 and Kasie Mather made on 16 March 2005.


I certify that paragraphs 1 - 27
are a true copy of the reasons
for judgment herein of
the Hon. Justice Einstein
given on 24 March 2005 and
revised on 5 April 2005

___________________
Susan Piggott
Associate

5 April 2005