Laurence v Palmers Group Pty Ltd
[2015] NSWSC 159
•3 March 2015
|
New South Wales |
Case Name: | Laurence v Palmers Group Pty Ltd |
Medium Neutral Citation: | [2015] NSWSC 159 |
Hearing Date(s): | 3 March 2015 |
Date of Orders: | 3 March 2015 |
Decision Date: | 3 March 2015 |
Jurisdiction: | Common Law |
Before: | Wilson J |
Decision: | Matter struck from the list |
Catchwords: | PROCEDURE - civil - urgent interim injunction – no originating process subsequently filed - dispute as to unpaid debt – dispute as to disposition of personal property – no evidence from plaintiff – struck from list with undertakings of the parties |
Category: | Procedural and other rulings |
Parties: | Estelle Laurence (Plaintiff) |
Representation: | Solicitors: |
File Number(s): | 2015/55901 |
Publication Restriction: | None |
Judgment
On 3 March 2015 whilst sitting as Duty Judge I struck this matter from the Court’s list. These are my reasons for so doing.
The History of the Matter
On Saturday 21 February 2015 his Honour Acting Justice Hulme, then sitting as Duty Judge, heard a telephone application from the plaintiff (“Ms. Laurence”) for an urgent interim injunction, to be granted ex parte against the defendant (“Palmers”).
The complaint made by Ms. Laurence was that Palmers, a company which operated a self-storage company at Greenacre, had threatened to remove property of hers from a storage unit operated by the company and leased by Ms. Laurence, and place it onto the street. Ms. Laurence sought the temporary injunction to restrain Palmers from interfering with or disposing of her property until the dispute between the parties could be resolved.
Hulme AJ made orders that, upon the plaintiff undertaking to pay any damages the defendant might incur should it be shown Ms. Laurence was not entitled to the injunction, Palmers was restrained from removing or otherwise causing the loss of Ms. Laurence’s property. The order was to remain in force until the following Wednesday, 25 February 2015.
The plaintiff gave his Honour an undertaking that she would file and serve a summons and affidavit in support on or before 23 February 2015. The matter was stood over before the Duty Judge on 25 February 2015.
On 25 February 2015 the matter was mentioned before Hall J, who was then hearing matters in the duty list. Although Mr. O’Hara, the Manager of the Greenacre storage units attended court, Ms. Laurence did not. She made an appearance by telephone with his Honour’s leave, stating that she was too unwell to attend in person.
Despite her earlier undertaking Ms. Laurence had not filed or served a summons, and there was no evidentiary material from her before the Court to substantiate the assertions that she had made on 21 February 2015.
Because the plaintiff has a visual impairment and claimed to have been unable to prepare originating process for that reason, Hall J was prepared to extend the time allowed her for filing and service of the documentation until 27 February 2015. Mr. O’Hara, who filed an affidavit he had sworn that day and which attached a number of annexures, gave the Court an undertaking that Ms. Laurence’s property would not be disposed of before 5pm on 27 February 2015.
On 26 February 2015 the plaintiff contacted the Court by telephone to ask for the listing of the matter for the following day to be vacated. She contacted the chambers of Hall J repeatedly, asserting that she had been unable to file and serve originating process because of her visual impairment. She said she could not come to Court the next day, but sought an extension of the undertaking given by Mr. O’Hara with respect to her property.
After many telephone calls from Ms. Laurence to chambers, Hall J listed the matter before him in chambers for a mention of the matter, to be conducted by telephone. The mention was ex parte.
During that hearing the plaintiff referred to a number of personal issues which had prevented her from preparing the necessary documentation to be filed with the Court, and asked for her goods to “be protected” until the following week.
There followed an extensive discussion during which his Honour endeavoured to determine when the plaintiff could file process, and when the plaintiff could attend Court for the matter to be determined. The matter was adjourned to 2pm on 3 March 2015, a time and date specifically fixed to accommodate the plaintiff’s other commitments. In the interim the defendant, who was contacted by Hall J’s associate, agreed to maintain its undertaking not to dispose of the plaintiff’s property until 5pm on 3 March 2015.
Although his Honour asked the plaintiff during the telephone mention to provide her residential address to the Court on a confidential basis, so that the Court could correspond with her if necessary, she refused to provide her address. Ms. Laurence told his Honour that she would do her best to file and serve the required documentation.
No originating process was subsequently filed.
The Evidence
In the absence of anything but verbal assertion from Ms. Laurence, the only evidence before the Court was that filed by Palmers. In his affidavit, Mr. O’Hara deposed that the plaintiff had leased a storage unit from Palmers since February 2012, but had been irregular in paying rent owed on the unit during the tenancy and was in arrears by some $8,034. Business records held by Palmers appear to provide evidence of the arrears. Mr. O’Hara also produced a number of other company records being copies of electronic file notes kept by Palmers staff members detailing the contact between the staff and Ms. Laurence during the lease period. Those notes established a pattern of requests for payment of outstanding rent monies, both verbal and in writing, from Palmers to the plaintiff, and the responses from Ms. Palmer which were, generally, promises to pay. Payment was made on occasion, but irregularly, and not in sufficient sums to reduce the arrears. Ms. Laurence’s repeated promises to remove her property from the storage unit came to nothing.
On 9 September 2014, with a significant sum still owed by the plaintiff to the company and the plaintiff’s property continuing in the storage unit, Palmers mailed a Notice of Termination to Ms. Laurence, in accordance with the terms of the lease agreement. The property remained in the unit and the rent continued to be substantially in arrears.
On 20 February 2015 there was some attempt by an unnamed male to collect Ms. Laurence’s property from the storage unit, apparently on her behalf. Although Ms. Laurence gave Hulme AJ a hearsay account of what transpired on this occasion, she filed no evidence on the matter, and her assertions to his Honour have not been made good. Mr. O’Hara gave the Court a sworn account of what occurred, that being that a male had attended Palmers’ premises to collect Ms. Laurence’s property, but was deterred from doing so by the large quantity of items to be moved. He left without taking any property. I accept Mr. O’Hara’s evidence on the point.
It was following this incident that the plaintiff sought the interim injunction.
The Hearing
As Duty Judge for the week commencing 2 March 2015, this matter was listed before me at 2pm on 3 March 2015. On 2 March 2015 the plaintiff telephoned my chambers. She did so repeatedly throughout that day, and again during the whole of the morning of 3 March 2015. The purpose of the calls was to seek a further extension of time in which to file and serve a summons and affidavit, an adjournment of the proceedings listed for 2pm on 3 March 2015, and an order restraining Palmers from dealing with her property. The plaintiff asserted that she could not attend court because of, variously, having suspected glandular fever, suffering from spider envenoming, being too frightened of the defendant, or, having no transport. The advice of my Chambers to Ms. Laurence was that her matter would be mentioned at the time listed, and she should be in attendance.
At the hearing on 3 March 2015, leave was given to Ms. Laurence to attend by telephone. Mr. O’Hara appeared for his employer.
In lengthy and at times highly voluble submissions, Ms. Laurence sought to explain why she had not filed any documents or evidence to substantiate her claims of 21 February 2015 with the Court. She conceded being substantially indebted to Palmers for rent arrears for the storage unit, and gave a promise that she would both pay the monies owed and remove her property.
Mr. O’Hara who, on the evidence, had dealt with the plaintiff with both patience and forbearance over many months, was prepared to allow Ms. Laurence’s goods to remain on the company’s premises until 5 pm on 6 March 2015. He was prepared to give the Court an undertaking to that effect.
Although Mr. O’Hara and Palmers had plainly been put to inconvenience by the plaintiff’s action, and the plaintiff’s assertions on 21 February 2015 as to why an injunction should issue to protect her property had not been substantiated, there was no application for costs. Doubtless this was a further example of the forbearance with which Palmers had dealt with Ms. Laurence.
The parties having reached an agreement, and there being no originating process before the Court for the plaintiff to move upon, I determined that the matter should be struck out.
In the absence of any application for costs, and bearing in mind that Palmers had not been obliged to engage legal representation, I did not make any order for costs against the plaintiff.
Plainly, if Ms. Laurence does not make good on her promises to remove her property from the storage unit by close of business on 6 March 2015, when the undertaking given by Mr. O’Hara lapses, Palmers will be entitled to take steps allowed it under the tenancy agreement to recover vacant possession of the storage unit. It will continue to be able to take legal action for recovery of rent arrears should Ms. Laurence not pay outstanding monies owed by her to Palmers.
ORDERS
The orders made were as follows:
(i)NOTING the undertaking of the plaintiff to remove her property from the premises at 13 – 15 Maybrick Street Greenacre by 5pm on 6 March 2015, and noting the undertaking of the defendant not to interfere with or otherwise dispose of that property before that time, and
(ii)FURTHER NOTING the undertaking of the plaintiff to pay all rental arrears to the defendant as soon as possible,
(iii)The matter is struck out.
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