Pilato v Stanizzo

[2024] NSWSC 350

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Pilato v Stanizzo [2024] NSWSC 350

Hearing dates:

4 April 2024

Date of orders:

4 April 2024

Decision date:

04 April 2024

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. The amended defence filed 2 April 2024 is struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW).

2. Judgment for the plaintiff for possession of the land comprised in Lot 64 in Deposited Plan 250963 being the land situated at and known as 19 Peace Crescent, Balgownie, NSW 2519.

3. Leave to defendant nunc pro tunc to file the notice of motion filed 3 April 2024.

4. Defendant’s Notice of Motion filed 3 April 2024 seeking a stay for the execution of writ of possession is listed for hearing before Davies J at 9:30am on 23 April 2024. Estimated hearing time = 1 hour.

5. Any evidence in response to defendant’s NOM to be filed and served by 18 April 2024.

Catchwords:

LAND LAW – possession of land – claim by trustee in bankruptcy against the bankrupt – where trustee now registered proprietor in lieu of the bankrupt – where bankrupt recently filed proceedings in the Federal Circuit and Family Court challenging the inclusion of the land as property divisible amongst creditors – where defendant claimed declaration that he had equitable rights in the land – where such claim did not constitute a defence to the claim for possession – defence struck out – judgment given for possession

Legislation Cited:

Bankruptcy Act 1966 (Cth) ss 27, 116

Uniform Civil Procedure Rules 2005 (NSW) r 14.28

Cases Cited:

National Australia Bank Limited v Hunter & Anor [2013] NSWSC 71

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Frank Lo Pilato (Plaintiff)
Vincent Francis Stanizzo (Defendant)

Representation:

Counsel:
A Jordan (Plaintiff)
A Berriman (Defendant)

Solicitors:
Oliveri Lawyers (Plaintiff)
Russoniello Lawyers (Defendant)

File Number(s):

2023/357373

Publication restriction:

Nil

Judgment

1. The defendant was until 11 October 2022 the registered proprietor of land at 19 Peace Crescent, Balgownie. On 21 June 2022 a sequestration order was made against the estate of the defendant. The plaintiff was appointed the defendant's trustee and on 11 October 2022 the plaintiff became registered as proprietor of the land.

2. On 10 November 2023, after a number of demands to vacate the property by the plaintiff were not met by the defendant, a statement of claim was filed in the Possession List in this Court seeking possession of the land. A defence was filed on 4 December 2023, which claimed the defendant was a party to a deed of declaration of trust executed on 29 May 2008 by him and two companies as the settlors of the trust. The defence claimed that in that way the land of which the trustee was the registered proprietor was not property divisible amongst creditors pursuant to s 116 of the Bankruptcy Act 1966 (Cth).

3. The matter came before me on 28 March 2024, when Mr Maroya appeared for the defendant. I drew Mr Maroya's attention to two difficulties, which I saw with the defence which had been filed. The first was that the question of whether property was divisible amongst creditors was a matter to be determined in the Federal Circuit Court and, secondly, that this Court was only concerned with the question of the right of the trustee to possession of the land rather than who ultimately might be determined to be the true owner of the land whether in law or in equity.

4. I gave leave for the filing of an amended defence and stood the matter over to today. I gave an indication that if no further defence was raised I would give judgment in favour of the plaintiff for possession of the land.

5. An amended defence was filed on 2 April 2024. It, again, raises the declaration of trust said to have been executed in 2008. The amended defence also pleads that on 28 March 2024 proceedings were commenced in the Federal Circuit and Family Court of Australia by the defendant against the trustee seeking a declaration under s 116 of the Bankruptcy Act that the property was not property divisible amongst creditors.

6. A notice of motion was also filed by the defendant on 3 April 2024, without any leave having been given by me, contrary to the Possession List Practice Note, that the present proceedings in this Court be stayed until the final determination of the application recently filed in the Federal Circuit and Family Court.

7. The plaintiff is the registered proprietor of the land. What is sought in the proceedings now instituted in the Federal Circuit and Family Court is a declaration, in effect, that the defendant, by virtue of the declaration of trust, has an equitable interest in the land. Until such a declaration is made the defendant has no interest in the land and the sole interest is that of the trustee, who is the registered proprietor. In any event, this Court does not have jurisdiction to determine whether property of a bankrupt is divisible amongst creditors: s 27 Bankruptcy Act; National Australia Bank Limited v Hunter & Anor [2013] NSWSC 71 at [29]-[35].

8. In those circumstances, there is nothing contained in the amended defence which constitutes a defence known to the law for the plaintiff's claim for possession.

9. The amended defence filed 2 April 2024 is struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW).

10. There will be judgment for the plaintiff for possession of the land comprised in lot 64 in deposited plan 250963 being the land situated at, known as, 19 Peace Crescent, Balgownie NSW 2519.

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Amendments

23 April 2024 - Typographical error on coversheet