Palmer v Penson (No 2) - [2018] NSWSC 987

Supreme Court

New South Wales

Medium Neutral Citation: Palmer v Penson (No 2) [2018] NSWSC 987
Hearing dates: 26 June 2018
Date of orders: 27 June 2018
Decision date: 27 June 2018
Jurisdiction: Common Law
Before: Fullerton J
Decision:
(1) Judgment for the plaintiff for possession of the land comprised in folio XXX being the land situated at and known as XXX Gillespie Avenue, Alexandria in the state of New South Wales.
(2) Leave to the plaintiff to issue a writ of possession; such writ not to be executed before 25 July 2018.
(3) The defendant is to pay the plaintiff’s costs.

Catchwords:
REAL PROPERTY – possession of land – plaintiff appointed receiver and manager of subject property – defendant subsequently made bankrupt – defendant remains in possession of subject property – action by plaintiff as receiver and manager for possession and leave to issue writ of possession – no standing by defendant to oppose orders – no defence to receiver’s claim.

PRACTICE AND PROCEDURE – reckoning of time – calculation of time period.
PRACTICE AND PROCEDURE – stay – whether stay affects the day on which orders take effect for the purposes of r 36.4 of the UCPR.
Legislation Cited: Bankruptcy Act 1966 (Cth)
Corporations Act 2001 (Cth)
Government Information (Public Access) Act 2009 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Bendigo Bank Ltd v Demaria [2001] VSC 218
In the matter of Aquaqueen International Pty Limited [2016] NSWSC 508
National Australia Bank Limited v Strik [2009] NSWSC 184
Category: Principal judgment
Parties: Christopher John Palmer (Plaintiff)
Shirley Penson (Defendant)
Representation: Solicitors:
Pure Legal (Plaintiff)
Beazley Boorman Lawyers (with leave) (Defendant)

File Number(s): 2018/75714

Judgment

HER HONOUR: By a statement of claim filed on 26 February 2018 the plaintiff seeks an order for possession of the land comprised in folio identifier XXX, being the land situated at XXX Gillespie Avenue, Alexandria in the state of New South Wales (“the property”). The plaintiff also seeks leave for the issue of a writ of possession of the property.
The defendant or a corporation owned and controlled by her (being Aquaqueen International Pty Limited) was a former registered proprietor of the property. She is currently in occupation of the property and has been for a number of years. She has refused to surrender the residential premises and afford the plaintiff vacant possession for the purposes of sale.

History

These proceedings are the culmination of lengthy litigation involving the plaintiff and defendant, including proceedings brought by or through Aquaqueen International Pty Limited against which adverse costs orders have been made.
On 20 April 2016, Kunc J made orders appointing the plaintiff receiver and manager of the property for the purposes of sale. Those orders had the effect of vesting the property in the plaintiff (In the matter of Aquaqueen International Pty Limited [2016] NSWSC 508).
The debts which were the occasion for the plaintiff’s appointment as receiver and manager of the property comprised various sums owed by the…

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: [2018] NSWSC 987
Decision Date: 27 June 2018

CaseChat Overview and Summary

The case of Palmer v Penson (No 2) involved the plaintiff, appointed as the receiver and manager of a property, seeking possession of the subject property from the defendant, who had become bankrupt but remained in possession. The plaintiff sought an order for possession and leave to issue a writ of possession. The defendant, as a bankrupt, did not have the standing to oppose the plaintiff’s application. The court had to determine if the defendant’s bankruptcy and lack of standing provided a defence to the receiver’s claim.

The central legal issue was whether the defendant’s bankruptcy and lack of standing to oppose the application meant there was no valid defence to the plaintiff's claim for possession of the property. The court also considered the implications of a stay on the reckoning of time for the purposes of an order under rule 36.4 of the Uniform Civil Procedure Rules (UCPR). Specifically, the court needed to determine if a stay affects the day on which orders take effect.

The court held that the defendant’s bankruptcy meant they had no standing to oppose the application, and thus no defence to the claim. The court further found that a stay does not affect the day on which orders take effect under rule 36.4 of the UCPR. Consequently, the court granted the plaintiff’s application for possession and leave to issue a writ of possession. The court's decision affirmed that the plaintiff, as receiver and manager, had the right to seek possession of the property from the defendant.

Orders