Scott v Wondal

[2015] NSWSC 1577

Supreme Court

New South Wales

Medium Neutral Citation:	Scott v Wondal [2015] NSWSC 1577
Hearing dates:	26 October 2015
Date of orders:	26 October 2015
Decision date:	26 October 2015
Jurisdiction:	Common Law
Before:	Davies J
Decision:	1. Defence filed 25 September 2015 struck out. 2. Leave to the Plaintiff to move for default judgment
Catchwords:	REAL PROPERTY – possession of land – defendant made bankrupt – defendant remains in possession of land owned by her – action by Trustee in bankruptcy for possession of land – no standing by defendant to oppose orders – no defence to Trustee’s claim
Cases Cited:	National Australia Bank Limited v Strik [2009] NSWSC 184
Category:	Procedural and other rulings
Parties:	Andrew John Scott (Plaintiff) Susiani Wondal (Defendant)
Representation:	Counsel: M Shafiq (Plaintiff) T Taleski (Defendant)   Solicitors: J S Mueller & Co. Solicitors (Plaintiff) Owen Hodge Lawyers (Defendant)
File Number(s):	2015/227133

Judgment

1. The Plaintiff seeks possession of the property known as Unit 28 with car space and storage area at 91 Meredith Street, Bankstown. The Plaintiff is with Scott Darren Pascoe a joint and several trustee of the bankrupt estate of the Defendant. A sequestration order was made against the Defendant on 27 October 2014. The Defendant is the registered proprietor of the property mentioned and, accordingly, that property forms part of her bankrupt estate. She remains in possession of the property.

2. A Statement of Claim was filed on 4 August 2015 seeking possession of that property. On 25 September an Appearance was filed by Owen Hodge Lawyers on behalf of the Defendant. On the same day the Defendant, seemingly acting for herself, filed a Defence which said in full (as it appears):

1.   Waiting for solicitor Peter Bouzanis, making a composition with the creditor for my unsecured credit cards debt

2   Suppose trustee Andrew Scott helped Susiani Wondal making a composition but he did not help, they just want to give away all my money from my Real Property

3   Why they blame me for the crime I did not commits make me suffer for other person crime

3. The Plaintiff seeks that the Defence be struck out under the Possession List Practice Note without the filing of a Notice of Motion. A Ms Taleski from Owen Hodge Lawyers has appeared this morning and has informed the Court that her firm will be ceasing to act for the Defendant. Her understanding was that the Defendant did not want them to act but the Defendant says otherwise. It will be necessary for Owen Hodge Lawyers to follow the usual procedure of giving intention to cease to act before they can do so.

4. As Johnson J made clear in National Australia Bank Limited v Strik [2009] NSWSC 184 at [9] and [10], a Defendant in the position of the present Defendant has no standing where a claim for a possession is sought in respect of property that forms part of the Defendant’s bankrupt estate.

5. In any event the Defence as filed does not disclose any defence known to the law even if the Defendant had standing to file it. For those reasons the Defence filed 25 September 2015 is struck out. Because of the lack of standing no purpose is served by giving the giving the Defendant any further opportunity to file a Defence. In those circumstances the Plaintiff is free to move for default judgment against the Defendant.

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Decision last updated: 27 October 2015