Marina Blue Pty Limited v Gear

[2018] NSWSC 824

Supreme Court

New South Wales

Medium Neutral Citation:

Marina Blue Pty Limited v Gear [2018] NSWSC 824

Hearing dates:

17 May 2018

Date of orders:

17 May 2018

Decision date:

17 May 2018

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

The Court orders that:

 

(1) The matter is stood over for hearing to 27 August 2018 at 10.00 am before Harrison AsJ.

 

(2) Grant leave to the plaintiff to file a notice of motion seeking lump sum costs order by 27 July 2018.

 

(3) All evidence admitted on adjournment application is evidence on the substantive hearing.

 

(4) The defendant is to pay the plaintiff’s costs of today. Such costs are not payable until the proceedings are finalised.

 

The Court directs that:

 (5) The defendant is to serve any further affidavit evidence by 27 July 2018.

Catchwords:

CIVIL PROCEDURE – Strike out application pursuant to rule 13.1 or rule 14.15(3) of the UCPR – summary judgment – leave to issue a writ of possession

  CIVIL PROCEDURE – Adjournment sought – application for adverse possession – adjournment granted

Legislation Cited:

Civil Procedure Act 2005 (NSW)
Residential Tenancies Act 2010 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Hamod v State of New South Wales [2011] NSWCA 375

Category:

Procedural and other rulings

Parties:

Marina Blue Pty Limited (Plaintiff)
Trevor Gear (Defendant)

Representation:

Counsel:
G Rundle (Plaintiff)

  Solicitors:
Jenson Partners (Plaintiff)
T Gear (Defendant in person)

File Number(s):

2017/308342

Publication restriction:

Nil

EX TEMPORE Judgment (revised)

1. HER HONOUR: By notice of motion filed 21 March 2018 the plaintiff seeks an order that firstly, the defence filed 12 March 2018 be struck out pursuant to rule 13.1 or rule 14.15(3) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”); secondly, judgment for the plaintiff for possession of the land comprised in Certificate of Title Folio Identifier 3/XXXXX being the land situated at and known as XX Wartlers Street, Port Macquarie (“the property”); and thirdly, leave to issue a writ of possession.

2. The plaintiff is Marina Blue Pty Limited (“Marina Blue”). The defendant is Trevor Gear. Marina Blue relied upon the affidavit of Graeme Robert Jensen dated 21 March 2018.

3. By statement of claim filed 11 October 2017, Marina Blue alleges that it is the registered proprietor of the property and the defendant is, and at all times, has been in possession of and has occupied the property without the authority of Marina Blue. Marina Blue has requested the defendant to vacate the property and the defendant has refused to do so. The defendant has not paid rent to Marina Blue in respect of his occupation nor is his occupation of the property subject to the Residential Tenancies Act 2010 (NSW).

4. The defence is a bit of a mixed document. The defendant admits that he has been in possession of the property and that he has been requested to vacate it and has refused to do so. He admits that Marina Blue is registered but it was reregistered after being deregistered in 2011 by ASIC and he intends to show that this should not have occurred. The defendant disputes the fact that he is not subject to the Residential Tenancies Act. He intends to defend the matter on many grounds and with the information and advice from many government agencies, including ASIC. He intends to prove that no-one has more of a right to the property than the defendant.

5. The defendant seeks an adjournment today. He has had some legal representation in the past but appears today unrepresented. He has been residing in the subject property for at least seven years, so it can hardly be said that the finalisation of this case is urgent. The defendant made an application for possessory title and, when he got to the final stage of advertising in the newspapers that he had applied for adverse possession, Marina Blue came back onto the scene.

6. It is true that Marina Blue had been deregistered on 12 June 2011 and on 17 July 2017 it was reinstated. The effect of the reinstatement is, as said in the letter from ASIC, that Marina Blue is taken to have continued in existence as if it had not been deregistered. A person who was a director of the company immediately before deregistration becomes a director again as from the time when ASIC or the Court reinstates the company, subject to any change notified at the time of reinstatement.

7. Any property of Marina Blue (including that which is the subject property at Port Macquarie) which was vested in ASIC or in the Commonwealth as a result of the company’s deregistration, reinvests in the company. There has been a change of directors and I note that, as at 20 March 2018, a Land Titles search shows that there were no unregistered dealings on title. The address of the director is shown to be the property next door. Yet it is the defendant’s observation that he (the director) does not in fact reside there.

8. While I accept that it is quite difficult to go behind these documents, it seems to me that the defendant has been in possession of the property for seven years. He seeks a further opportunity to investigate his rights to possessory title.

9. The law is set out in ss 56, 57, 58 and 66 of the Civil Procedure Act 2005 (NSW) and the guiding cases of Hamod v State of New South Wales [2011] NSWCA 375 and Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175.

The legal principles in relation to adjournments

10. Sections 56, 57 58 and 66 of the Civil Procedure Act 2005 relevantly read:

“56 Overriding purpose

(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.

(3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.

…

57 Objects of case management

(1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects:

(a) the just determination of the proceedings,

(b) the efficient disposal of the business of the court,

(c) the efficient use of available judicial and administrative resources,

(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.

(2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1).

58 Court to follow dictates of justice

(1) In deciding:

…

the court must seek to act in accordance with the dictates of justice.

(2) For the purpose of determining what are the dictates of justice in a particular case, the court:

(a) must have regard to the provisions of sections 56 and 57, and

(b) may have regard to the following matters to the extent to which it considers them relevant:

(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,

(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,

(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,

(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),

(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,

(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,

(vii) such other matters as the court considers relevant in the circumstances of the case.

66 Adjournment of proceedings

(1) Subject to rules of court, the court may at any time and from time to time, by order, adjourn to a specified day any proceedings before it or any aspect of any such proceedings.

…”

11. In Hamod v State of New South Wales [2011] NSWCA 375, the Court of Appeal reviewed the principles to be considered in deciding whether an adjournment should be granted. The trial judge had refused an adjournment by a self-represented litigant part way through the hearing.

12. The Court of Appeal in that case referred to Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175. Their Honours stated at [139] to [145]:

139 The considerations relevant to the determination of interlocutory applications were recently considered by the High Court in Aon Risk Services Australia Ltd v Australian National University. In Aon Risk Services Australia Ltd, the Court was dealing with the rules of court of the Supreme Court of the ACT. Those rules are relevantly similar to the Civil Procedure Act, s 56 ff. Although the application in question in that case was an application to amend pleadings, the High Court addressed the concerns of case management more generally, noting the impact that substantial delay and wasted costs has on parties, the court and other litigants. Relevant to the application in this case are the comments of French CJ, at [5]:

“[T]here is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system.”

140 His Honour further stated, at [30]:

“Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes.”

141 A just resolution of proceedings remains the paramount purpose of the case management objectives articulated in the relevant procedural provisions of the civil procedure legislation: in particular see the Civil Procedure Act, s 56. What constitutes a “just resolution” is to be understood in light of the purposes and objectives stated in the statutory provisions. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. However, these terms are relative and parties should be given an appropriate opportunity to plead and argue their case. Nonetheless, there are limits to the extent that a party will be accommodated in the conduct of the litigation. In Aon Risk Services Australia Ltd, Gummow, Hayne, Crennan, Kiefel and Bell JJ, at [98], stated:

“The Rule's reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.”

142 In his submissions to this Court, Mr Hamod made specific reference to these provisions, as well as to s 66. He submitted that his Honour was obliged to apply s 66, subject to s 56, and to then make his determination according to the dictates of justice as required by ss 57-58. Section 66 provides, relevantly, that the court may at any time, by order, adjourn proceedings.

143 There is nothing new in this provision. It merely confers upon the court a discretion to grant an adjournment. The court has always had that power, both in the exercise of its inherent jurisdiction and pursuant to the Supreme Court Act 1970. Nor is s 56 a new concept. Rather, it is the statutory embodiment of jurisprudence that had already gained prominence in the case law. Issues of delay, costs and inefficiency have led to active case management in the courts as a recognised feature of the administration of justice for at least the last two decades.

144 Mr Hamod also relied upon ss 57 and 58. Section 57 provides that in furthering the overriding purpose of a just, quick and cheap resolution of case, the court is required to manage cases having regard, inter alia, to “the just determination of the proceedings”: s 57(a). Section 58 provides that in making any order or direction the court is to “seek to act” in accordance with the dictates of justice, including having regard to the “degree of injustice that would be suffered by the respective parties as a consequence of any order or direction”.

145 These provisions have been the subject of frequent judicial comment: Tripple Take Pty Ltd v Clark Rubber Franchising Pty Ltd [2005] NSWSC 1169; Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2005] NSWSC 1339; Dennis v Australian Broadcasting Corporation [2008] NSWCA 37; Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230; Bi v Mourad [2010] NSWCA 17 at [47]; Richards v Cornford (No 3) [2010] NSWCA 134; McMahon v John Fairfax Publications Pty Ltd [2010] NSWCA 308. In McMahon v John Fairfax Publications Allsop P, at [26], referred to the case management provisions ss 56-60 as follows:

“The operation of the Civil Procedure Act, ss 56-60 has brought about important changes to the conduct of civil litigation in this State. To a significant degree those provisions enshrined many of the developments in case management and the approach to litigation over the previous 20-30 years in this country. They now have statutory form. They are, however, a clear statutory watershed. That statutory form comprises the over-riding purpose: s 56, the fulfilment of which binds the Court (s 56(2)), the parties (s 56(3)) and legal advisers (s 56(4)). That over-riding purpose is the ‘just, quick and cheap resolution of the real issues in the proceedings’.”

13. It is my view, that if I were to grant the adjournment it would need to be for a period of at least two months taking into account that the defendant was notified that his application for adverse possession was rejected in March 2018, which is only some six weeks ago. What he wants to do is to take up the change in directors and the reregistration of the company with ASIC, he wants to remove the caveat and continue with his application for adverse possession.

14. In these circumstances, where the defendant has been in possession of the property and Marina Blue was deregistered for years and did nothing, and where the defendant has only just been told that his adverse possession application has been rejected, I intend to allow him some time to investigate whether he can in fact get any legal relief. He should be given this opportunity before his defence is struck out.

15. What I propose to do is to stand the matter over for two months and list it for hearing before myself. I intend to proceed on the next occasion unless the defendant can demonstrate to me that he is well-advanced in gaining adverse possession.

The Court orders that:

(1)   The matter is stood over for hearing to 27 August 2018 at 10.00 am before Harrison AsJ.

(2)   Grant leave to the plaintiff to file a notice of motion seeking lump sum costs order by 27 July 2018.

(3)   All evidence admitted on adjournment application is evidence on the substantive hearing.

(4)   The defendant is to pay the plaintiff’s costs of today. Such costs are not payable until the proceedings are finalised.

The Court directs that:

(5)   The defendant is to serve any further affidavit evidence by 27 July 2018.

**********

Decision last updated: 04 June 2018