Phillip Mulcahy v Registrar-General Office of Regulatory Services

[2013] ACTSC 63

PHILLIP MULCAHY v REGISTRAR-GENERAL OFFICE OF REGULATORY SERVICES & ANOR [2013] ACTSC 63 (12 April 2013)

PRACTICE AND PROCEDURE – application to strike out statement of claim and for summary judgment for defendant – failure by the plaintiff to provide particulars – failure by plaintiff to comply with orders and directions – orders made as sought

COURTS AND TRIBUNALS – removal of proceedings from ACT Civil and Administrative Tribunal to Court – Tribunal proceeding consolidated with Court proceeding – exercise by Court of Tribunal powers under Residential Tenancies Act 1997

Residential Tenancies Act 1997

No. SC 284 of 2011

Judge:             Master Harper             
Supreme Court of the ACT

Date:               12 April 2013

IN THE SUPREME COURT OF THE     )
  )          No. SC 284 of 2011
AUSTRALIAN CAPITAL TERRITORY           )          

BETWEEN:  PHILLIP MULCAHY

Plaintiff         

AND:REGISTRAR-GENERAL OFFICE OF REGULATORY SERVICES

First Defendant

AND:HEATHER JOAN MULCAHY

Second Defendant

ORDER

Judge:  Master Harper
Date:  12 April 2013
Place:  Canberra

THE COURT ORDERS THAT:

1. the statement of claim be struck out.

1. judgment be entered for the second defendant.

1. the first defendant remove caveat number 1645748 in respect of Certificate of Title Volume 856 Folio 55.

1. any tenancy between the second defendant and the plaintiff of 32 Swanton Street, Chisholm terminate on 24 May 2013.

1. the plaintiff vacate the premises at 32 Swanton Street, Chisholm on or before 24 May 2013.

1. this order have effect as if it were a warrant for eviction under Division 2.4 of the Residential Tenancies Act 1997.

1. The second defendant’s costs of the consolidated action and of the application be paid by the plaintiff.

1. This is an application by the second defendant for an order that the plaintiff’s statement of claim be struck out, and for summary judgment.

1. The second defendant is the adoptive mother of the plaintiff, and the dispute before the Court is between them.  The first defendant, the Registrar-General, has not filed a notice of intention to respond and, although served, evidently does not intend to participate in the proceedings.  The only relief sought against the first defendant involves a caveat lodged by the plaintiff on the title to a residential property at Chisholm, which the second defendant wants removed.

1. The second defendant is the registered proprietor as Crown lessee of the Chisholm property, subject to a mortgage to Westpac Banking Corporation.  The plaintiff lives in the house.

1. During August 2009 the plaintiff lodged a caveat against the title to the property.

1. In late April 2011 the second defendant commenced proceedings in the ACT Civil and Administrative Tribunal for resolution of a tenancy dispute with the plaintiff, seeking termination of the tenancy and vacant possession of the property, and applied to the Registrar-General for the lapsing of the caveat.

1. The present proceedings were commenced by the plaintiff on 11 May 2011 by originating application supported by affidavit.  The plaintiff sought an extension of the caveat, a declaration that the second defendant held the property on trust for him, and an order for sale of the property subject to payment to the second defendant of $128,000.00, being an amount paid by the second defendant during 2004 to discharge an earlier mortgage.

1. Two days after the commencement of the proceedings, Penfold J ordered by consent that the caveat not be removed until further order, and that the Tribunal application be transferred to this Court and consolidated with the present action.

1. In August 2011 the solicitors then acting for the plaintiff filed a statement of claim.  In summary, the plaintiff asserted that during May 1992 he and the second defendant agreed that he would purchase the property but that it would be held in her name on trust for him.  He paid a deposit of $10,000.00, and the balance of the purchase price was borrowed from a bank and secured by mortgage.  The plaintiff said that from then until early 2004 he paid the mortgage payments, rates and other expenses.  Early in 2004 the second defendant proposed to him that she pay the mortgage out, on the understanding that he would reimburse her when he was in a financial position to do so or on sale of the property.  The mortgage was discharged, and the plaintiff continued to pay the outgoings and expenses in respect of the property until about January 2010.  During April 2004 the plaintiff and second defendant agreed to prepare a document purporting to be a rental agreement, to be shown to the plaintiff’s then wife.  The agreement did not reflect any actual agreement between the plaintiff and the second defendant and there was no consideration for it.  The plaintiff never agreed to rent the property, or pay any rent to the second defendant.

1. The statement of claim went on to assert that since May 1992 the plaintiff had expended considerable sums in improving the property, including landscaping, building work, painting and various other improvements.  The plaintiff then pleaded an express trust for his benefit, or alternatively a constructive trust. In the alternative, the plaintiff pleaded that in May 1992 the second defendant made representations to him that he was to be the beneficial owner of the property, with the right to live in it, accompanied by responsibility on his part for outgoings.

1. The plaintiff then asserted that in April 2004 the second defendant represented to him that she would pay out the then mortgage to assist him during his divorce from his then wife, and would agreed to the generation of a rental agreement to assist him (presumably in his divorce proceedings), but that he would not have to pay rent and would remain the beneficial owner of the property.  He would repay her the amount paid out to discharge the mortgage when he could do so or on sale of the property.  The plaintiff relied on the 1992 representations and the 2004 representations to his detriment.  The second defendant was accordingly estopped from now asserting that she held any beneficial interest in the property or was entitled to payment of any rent.

1. On 28 October 2011 the solicitors for the second defendant sought further and better particulars of the statement of claim from the then solicitors for the plaintiff.  The request was an extensive one, running to some five pages.  On 2 December 2011 the plaintiff’s solicitors provided some of the particulars, but did not supply particulars of the payments said to have been made by the plaintiff by way of improvement of the property, or in respect of outgoings or expenses, including payments in respect of the mortgage.

1. The matter came before the Court for directions on a number of occasions, and orders were made that particulars be provided by specified dates.  The orders were not complied with by the plaintiff, although the plaintiff has provided the second defendant’s solicitors with some documentation in relation to alleged payments, though, according to the solicitors, not in a convenient form.

1. In July 2012 the second defendant’s solicitors filed the present application, seeking orders that the statement of claim be struck out and that judgment be entered for the second defendant  with ancillary orders as to the removal of the caveat and as to costs.

1. The application came before the Court on its return date, 27 July 2012. It was adjourned on four occasions before being heard on 5 October 2012.

1. On 14 August 2012 the plaintiff’s solicitors filed a notice of withdrawal. On 7 September the plaintiff appeared in person and sought an adjournment to obtain other legal representation.  I stood the application over for four weeks and told the plaintiff that I would be minded to proceed on the next occasion whether or not he was represented.

1. On 5 October 2012 the plaintiff was again unrepresented.  He informed me that he had made endeavours to obtain representation without success.  He sought a further adjournment which I refused.

1. In the months that have passed since then, no notice has been filed to the effect that any solicitor has been instructed to act for the plaintiff, and no further steps have been taken by him.

1. I take account of the fact that the plaintiff’s previous solicitors supplied the solicitors for the first defendant with some of the particulars they sought, and that it is really only the particulars of payments the plaintiff says he has made over the years which are outstanding.  I have considered in those circumstances whether it would be enough if I were to order that the paragraphs of the statement of claim asserting the payment of those amounts be struck out, leaving the balance of the pleading to go to trial, subject to such defence as may be filed.  I have come to the conclusion that this is not a practical course.  The assertion that the plaintiff paid from his own funds all mortgage payments from 1992 until 2004, and all rates and other expenses associated with the property, and that he paid between 1992 and 2011 substantial amounts for improvement of the property, seem to me to be essential assertions for his cause of action.  He pleads that part of the agreement with his mother was that he would, following completion, pay the mortgage payments, rates and other expenses, and to succeed he would have to prove this.  In the circumstances the second defendant is entitled to proper particulars of the alleged payments.

1. I also take into account the fact that the plaintiff’s failure to provide these particulars has been to his benefit and to the detriment of the second defendant, in that he has continued to live in the property and to deny to his mother the benefits that would accrue to her from vacant possession, including the opportunity to sell the property.

1. The solicitor for the second defendant has lodged a draft defence and counterclaim, and deposed to his instructions as to the defence of the second defendant and her account of the factual background.

1. I am satisfied that the plaintiff has failed to provide particulars to which the second defendant is entitled, and which she would require in order to know the case she would have to meet if the action were to go to trial.  The plaintiff has had adequate opportunity to provide the particulars.  I am not persuaded that he would be likely to provide satisfactory particulars given further time.  In those circumstances the statement of claim should be struck out.

1. This is not a case where it would be appropriate to permit the plaintiff to re-plead.  He has not suggested that he wishes to do so in any event.  Accordingly, there should be summary judgment for the defendant.

1. There is no longer any justification for the caveat remaining on the title.  The first defendant will be ordered to remove caveat number 1645748 in respect of Certificate of Title Volume 856 Folio 55.

1. The proceedings commenced by the second defendant in the Tribunal have been removed to this Court and consolidated with the present action.  This Court accordingly has available to it the powers conferred on the Tribunal by the Residential Tenancies Act 1997, including the power to make a termination and possession order. It seems to me reasonable, having regard to the long period of possession of the property by the plaintiff, that he and his partner should have six weeks to find other accommodation. There will accordingly be an order that any tenancy between the second defendant and the plaintiff terminates on Friday, 24 May 2013 and that the plaintiff must vacate the premises on or before that date. Should the plaintiff fail to vacate the premises by that date, the termination and possession order is to have effect as if it were a warrant for eviction under Division 4.2 of the Residential Tenancies Act.

1. The plaintiff must pay the second defendant’s costs of the present application and of the consolidated action.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Master Harper.

Associate:          Katie van den Bos

Date:                 12 April 2013

Plaintiff:  In person        
Counsel for the second defendant:                Mr S R Hausfeld
Solicitor for the second defendant:               A Relf & Co
Date of hearing:  5 October 2012
Date of judgment:  12 April 2013