Regreen 2000 Pty Limited v Stephenson & anor

[2006] NSWSC 1313

CITATION:	Regreen 2000 Pty Limited v Stephenson & anor [2006] NSWSC 1313
HEARING DATE(S):	1 December 2006
JUDGMENT DATE :	1 December 2006
JURISDICTION:	Equity Division One Day List
JUDGMENT OF:	Windeyer J at 1
DECISION:	Summary judgment ordered
CATCHWORDS:	REAL PROPERTY - summary judgment - no interest in property
PARTIES:	Regreen 2000 Pty Limited (Plaintiff) William Lloyd Stephenson (First Defendant) Colleen Muriel Stephenson (Second Defendant)
FILE NUMBER(S):	SC 1157 of 2006
COUNSEL:	Mr G Drew (Plaintiffs) In person (Defendants)
SOLICITORS:	Norbert Lipton & Co (Plaintiff) In person (Defendants)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
ONE DAY HEARING LIST

WINDEYER J

FRIDAY 1 DECEMBER 2006

1157/06 REGREEN 2000 PTY LTD v WILLIAM LLOYD STEPHENSON & ORS

JUDGMENT

1 HIS HONOUR: These proceedings were commenced by summons filed on 20 January 2006 seeking final declarations that the defendants have no estate or interest in the properties Folio Identifiers 1/218794 and 2/218794. Those titles relate to properties 88 and 94 Junction Road, Riverstone.

2 The registered proprietors of those properties had been the first defendant. The properties were subject to a mortgage to a Mr Peter Foley. That mortgage was entered into in 1993 and was registered on the title. Subsequently, Mr Stephenson became bankrupt. His trustee in bankruptcy was Mr Roderick Mackay. Mr Stephenson was discharged from his bankruptcy at a later date but the properties which had vested in the trustee remained with the trustee so that whatever interest Mr Stephenson had in the land in question remained with the trustee.

3 The mortgagee Mr Foley then sold the subject properties pursuant to his rights to do so under the mortgage. As I explained in an interlocutory judgment, there had been various caveats entered against the title by one or other of the defendants, all claiming more or less the same interest, in that they claimed to have been wrongfully deprived of possession of the properties, as I understand it, for the most part through acts of their sons.

4 The present plaintiff is a company which the evidence shows is controlled at least by one of those sons. The evidence is that the company purchased the property from the mortgagee after an unsuccessful attempt to sell that property by auction. Whether or not the defendants have some claim against the mortgagee in respect of that sale, I do not know, although some argument about that was put forward by Mr Stephenson from the bar table. What he has said has been taken down and although he did not go into the witness box I accept it as evidence for the purposes of this summary judgment application. The sad position is that there has been a family falling out; whether that has been brought about the impecunious position of the defendants, I am really unable to determine, but what can I determine is that after the sale by the mortgagee and there being no proceedings to set aside that sale, the defendants have no estate or interest in the property the subject of that sale and, therefore, the declarations which are sought should be made.

5 I have already made an order restraining the defendants from lodging any further caveat against the title to the land in question. It maybe thought that this was an interlocutory order pending a final hearing and for that reason I will make the order again, although I should say it did appear to be in the form of a final order. That was perhaps inappropriate and, therefore, I will make that order again. I should add that the defendants have been represented in these proceedings, from time to time, by competent lawyers, who have now filed a notice of ceasing to act.

6 I make the declarations sought in paragraphs 1 and 2. I make the orders sought in paragraphs 4 and 5. Order the defendants to pay the plaintiff's costs. Summons otherwise dismissed.

7 I refuse the application for indemnity costs which in my view should not have been made.

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