Pascoe v Maynes
[2013] NSWSC 918
•09 July 2013
Supreme Court
New South Wales
Medium Neutral Citation: Pascoe v Maynes [2013] NSWSC 918 Hearing dates: 9 July 2013 Decision date: 09 July 2013 Jurisdiction: Common Law Before: Schmidt J Decision: 1. That personal service of the statement of claim be dispensed with.
2. That the statement of claim be deemed to have been served on the defendants on 11 June 2013.
3. That there be summary judgment for the plaintiffs.
4. That the defendants give vacant possession of the property within 21 days of the date of this order.
5. That a writ of possession be issued in favour of the plaintiffs.
6. The defendants are to bear the plaintiffs' costs as agreed or assessed.
Catchwords: PROCEDURE - possession of land - notice of motion - orders seeking summary judgment, vacant possession and issue of a writ of possession - exparte application - orders sought made - costs Legislation Cited: Bankruptcy Act 1966 (Cth) Cases Cited: Maynes v Casey [2010] NSWDC 285 Category: Procedural and other rulings Parties: Scott Darren Pascoe (First Plaintiff)
Andrew John Scott (Second Plaintiff)
Lindsay Arthur Maynes (First Defendant)
Susan Linda Maynes (Second Defendant)Representation: Counsel:
Mr AP Spencer (Plaintiff)
Solicitors:
Sally Nash & Co (Plaintiffs)
No appearance (Defendants)
File Number(s): 2013/150825 Publication restriction: None
EX TEMPORE Judgment
By statement of claim filed on 15 May 2013, the plaintiffs seek possession of a property located at Woodstock in the Cowra Shire of New South Wales, where the defendants, Mr Lindsay Maynes and Ms Susan Maynes, reside. The claim is defended by a defence filed by the defendants on 12 June 2013.
At today's hearing the plaintiffs seek orders in terms provided in a notice of motion filed on 25 June 2013 for summary judgment and vacant possession. They also seek the issue of a writ of possession in their favour.
The notice of motion also seeks orders in relation to the deemed service of the statement of claim in circumstances where personal service could not be effected on the defendants for reasons connected with earlier proceedings between the parties (see Maynes v Casey [2010] NSWDC 285).
On the material before the Court, it is apparent that not only was the statement of claim served upon the defendants, but also notices to occupiers and notices to vacate, the latter having been served upon them in March 2013.
In support of the application the plaintiffs rely on affidavits sworn by Ms Fazio, the plaintiffs' solicitor, Ms Matchett, a clerk in the employ of the plaintiffs' solicitor and Ms Zhang, another clerk in the employer of the plaintiffs' solicitor. The evidence that the statement of claim and other documents have been served on the defendants, both by post at their residential address and at another email address which they themselves notified to the Court, as an address at which service could be effected upon them.
In those circumstances, I am satisfied that the order sought as to deemed service should be made. I am also satisfied that the evidence establishes a proper basis for the other orders which the plaintiffs seek.
There was no appearance today for the defendants to defend the notice of motion, although I note from material on the file and evidence relied on by the plaintiffs, that the defendants were aware of today's hearing of the motion. By letter of 5 July 2013 they advised that they would not appear and accordingly, the hearing of the motion proceeded today ex parte.
The circumstances which the evidence revealed is that the plaintiffs are the trustee of the property of the defendants. The defendants were declared bankrupt in 2012. At that date they were the registered proprietors of the land the subject of the proceedings. They still remain in occupation of the property, even though the property has now vested in the plaintiffs pursuant to the provisions of s 115 and s 116 of the Bankruptcy Act 1966 (Cth). The plaintiffs are now the registered proprietors of the land.
The defence filed in June discloses no defence to the matters raised in the statement of claim. It raises only two matters:
"1 The matter to be quashed and dismissed - all legislation used is unsigned, and court orders are unsigned - refer The Sons of Gwalia decisions Folio 6 of Exhibits.
2 The amount of $424,219.44 to be awarded against Sally Nash, individual and sole trader, to be paid to myself and my husband. That amount to be paid in a cheque as held to American dollars within seven days to the terms of Hungerford and Walker on an indemnity basis plus Supreme Court interest to date to the standing of Australian dollar to the United States dollar on 21st day of November 2012 and to be delivered by 4 p.m. within seven days from the date of hearing to 'Berkeley' XX XXXXX XXX Road, Woodstock, NSW."
The relevance of what is pleaded in the defence to the matters raised in the statement of claim is not apparent. There is no question on the evidence that the plaintiffs are now the registered proprietors of the property and entitled to the possession which they seek. Who Ms Nash is and what the sum referred to in paragraph 2 of the defence relates to, is not apparent on the defence, nor on the evidence before me.
That evidence, I note, includes correspondence addressed to the Registrar sent on 5 July and signed by the second defendant, Ms Maynes. It says various things which are somewhat difficult to follow, but includes advice of a view that the order by which the defendants were made bankrupt was void, as well as advice that the defendants do not propose to attend the proceedings today, given their view as to the status of this Court.
Also in evidence is an affidavit sworn by Ms Maynes on 12 June 2013. It contains some 50 paragraphs in which a range of matters are canvassed and opinions which the defendants appear to hold are explained. None of them seem to have much relevance to the matter here arising to be determined. They certainly do not cast doubt on the evidence which establishes their bankruptcy and the circumstances in which the plaintiffs thereupon became the registered proprietors of the property, to which I have earlier referred.
In those circumstances, I am satisfied that the evidence has established that the plaintiffs are entitled to possession of the land which they seek and that the defendants must be ordered to give that possession.
Orders
The usual order as to costs is that costs follow the event. In this case that is an order in favour of the plaintiffs for costs as agreed or assessed. In the circumstances that is the appropriate order.
For those reasons, I make the following orders:
1. That personal service of the statement of claim be dispensed with.
2. That the statement of claim be deemed to have been served on the defendants on 11 June 2013.
3. That there be summary judgment for the plaintiffs.
4. That the defendants give vacant possession of the property within 21 days of the date of this order.
5. That a writ of possession be issued in favour of the plaintiffs.
6. The defendants are to bear the plaintiffs' costs as agreed or assessed.
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Decision last updated: 10 July 2013
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