Secure Funding Pty Limited v Coughlin - [2009] NSWSC 384

Reported Decision:
74 NSWLR 687

New South Wales

Supreme Court

CITATION: Secure Funding Pty Limited v Coughlin [2009] NSWSC 384

HEARING DATE(S): 11 May 2009

JUDGMENT DATE :
15 May 2009

JUDGMENT OF: Schmidt AJ

DECISION: Standing established. Motion to be heard.

CATCHWORDS: PROCEDURE - miscellaneous procedural matters - other - notice of motion - defendant's children seeking to be joined as defendants to proceedings - question of standing - children not occupiers of property - section 63, section 65 and section 75 of the Supreme Court Act 1970 considered - interest in proceedings established - nature of duty imposed by section 8 of Farm Debt Mediation Act 1994 considered - personal interest raising from eviction from property established

LEGISLATION CITED: Archaeological and Aboriginal Relics Preservation Act 1972 (Vic)
Common Law Procedure Act 1899
Farm Debt Mediation Act 1994
Local Government Act 1919
Supreme Court Act 1970
Supreme Court Rules 1970
Uniform Civil Procedure Rules 2005

CATEGORY: Principal judgment

CASES CITED: Bankstown Airport Ltd v Noor Al Houda Islamic College Pty Ltd [2002] NSWSC 193
Cameron North Sydney Investments Pty Ltd v The Owners Strata Plan No 50411 and Ors [2002] NSWSC 726
Caterpillar of Australia Pty Ltd v Industrial Court of New South Wales [2009] NSWCA 83
Cody v JH Nelson Pty Ltd (1947) 74 CLR 629
Day v Pinglen Proprietary Limited and Others (1981) 148 CLR 289
Forster v Jododex Australia Pty Ltd and Another (1972) 127 CLR 421
Johnco Nominees Pty Ltd v Albury Wodonga (NSW) Corp [1977] 1 NSWLR 43
Kerr v Sheriff of New South Wales (1996) 9 BPR 16,215
National Commercial Banking Corp of Australia Ltd v MRM Holdings Ltd (183) 3 BPR 9339
Neeta (Epping) Pty Ltd v Phillips [1974] 131 CLR 286
Onus and Another v Alcoa of Australia Limited (1981) 149 CLR 27
Owners Strata Plan No 50411 and Ors v Cameron North Sydney Investments Pty Ltd [2003] NSWCA 5

PARTIES: Plaintiff - Secure Funding Pty Limited (ACN 081 982 872)
Defendant - Steven James Coughlin

FILE NUMBER(S): SC 14966/07

COUNSEL: Plaintiff - Mr S Gray, counsel
The Occupiers - Mr M Foley, solicitor

SOLICITORS: Plaintiff - Dibbs Barker
The Occupiers - Foleys

- 19 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SCHMIDT AJ

Friday, 15 May 2009

14996/07 SECURE FUNDING PTY LTD v COUGHLIN

JUDGMENT

1 HER HONOUR: By notice of motion of 8 May 2009, by their tutor Ms Jie Yu (aka Jerry Yu), Heidi Coughlin and Chad Coughlin sought the following orders:

1. All formalities and requirements as to time for service of this Notice of Motion be waived and an Order that the INTERLOCUTORY relief sought in this Notice of Motion be dealt with on an urgent ex parte basis.

2. All enforcement action arising from the default Judgment and the Writ of Possession issued on 18th August 2008 be stayed forthwith and that such stay be continued until the Occupier's Notice of Motion is heard and determined.

3. That…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] NSWSC 384
Decision Date: 15 May 2009

CaseChat Overview and Summary

Secure Funding Pty Limited, the plaintiff, initiated proceedings against Coughlin, the defendant, concerning a property dispute. The case was heard in the Supreme Court of Western Australia. The children of the defendant sought to be joined as defendants in the proceedings. The court had to decide whether the children had standing to be joined as defendants and if the interest of the children in the proceedings was sufficient to grant them standing.

The court considered the relevant sections of the Supreme Court Act 1970 and the Farm Debt Mediation Act 1994 to determine the standing of the children. The court found that the children did not have a sufficient interest in the proceedings as they were not occupiers of the property. However, the court determined that the children had a personal interest in the proceedings as they faced eviction from the property. The court held that the personal interest of the children was sufficient to grant them standing to be joined as defendants in the proceedings.

The court further considered the nature of the duty imposed by section 8 of the Farm Debt Mediation Act 1994 and found that the duty was not exclusive and could be exercised by the children. The court held that the children had established an interest in the proceedings and granted their application to be joined as defendants. The court found that the interests of justice required the children to be joined as defendants in the proceedings.

The court ordered that the children be joined as defendants in the proceedings. The court held that the children had a sufficient interest in the proceedings and that their personal interest in the proceedings was sufficient to grant them standing. The court also held that the duty imposed by section 8 of the Farm Debt Mediation Act 1994 was not exclusive and could be exercised by the children. The court found that the interests of justice required the children to be joined as defendants in the proceedings.

Orders