Secure Funding Pty Ltd v Johnson

[2023] NSWSC 312

Supreme Court

New South Wales

Medium Neutral Citation:

Secure Funding Pty Ltd v Johnson [2023] NSWSC 312

Hearing dates:

6 April 2023

Date of orders:

6 April 2023

Decision date:

06 April 2023

Jurisdiction:

Common Law

Before:

Davies J

Decision:

(1) Grant leave to the plaintiff to file a notice of motion filed on 6 December 2022 nunc pro tunc.

(2) Order that pursuant to Rule 6.24, 6.29 and 6.32 (1d) of the Uniform Civil Procedure Rules 2005 (NSW) the NSW Trustee and Guardian be substituted for Dianne Ruby Johnson as first defendant in this proceeding.

(3) An order pursuant to s 64 of the Civil Procedure Act 2005 (NSW) that the plaintiff be granted leave to amend the statement of claim in accordance with the form annexed to the affidavit of David Benjamin Goldman filed on 6 December 2022.

(4) The Amended Statement of Claim be served on the NSW Trustee and Guardian and notice provided to Hellen Ring and Gary Plaizier of these orders by 18 April 2023.

(5) Proceedings adjourned to 28 April 2023 at 9.30am.

(6) Liberty to apply on 24 hours’ notice.

Catchwords:

CIVIL PROCEDURE – parties – possession proceedings – where the defendant who was the mortgagor had died before proceedings commenced – where no administration of the deceased’s estate applied for – NSW Trustee and Guardian substituted for deceased defendant

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

GEL Custodians Pty Limited v The Estate of the late Geoffrey Francis Wells [2013] NSWSC 973

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Secure Funding Pty Ltd (Plaintiff)
Dianne Ruby Johnson (First Defendant)
Christian Richard Johnson (Second Defendant)

Representation:

Counsel:
D Goldman (Plaintiff)
No appearances (Defendants)

Solicitors:
Norton Rose Fulbright (Plaintiff)
Unrepresented (Defendants)

File Number(s):

2022/272191

Publication restriction:

Nil

Judgment

1. The plaintiff seeks leave in the first instance pursuant to the Possession List Practice Note to file nunc pro tunc a notice of motion that was filed on 6 December 2022. That motion seeks an order pursuant to r 6.32 that the Uniform Civil Procedure Rules 2005 (NSW) that the NSW Trustee and Guardian be substituted for Dianne Ruby Johnson as the first defendant in these proceedings.

2. Ms Johnson died on 18 September 2021. The proceedings were commenced on 12 September 2022 seeking possession of land at Maud Street, Cardiff as a result of a mortgage which was given to secure a loan agreement entered into by Ms Johnson and her then husband Christian Richard Johnson on 13 November 2006. Dianne Johnson is the sole registered proprietor of the property.

3. At a time shortly before the proceedings commenced, a process server had been engaged to conduct an occupancy check in relation to the property. The process server there spoke with a male occupant who identified himself as Garry, the son of the second defendant. Garry, as it later became clear, is Garry Plaizier, who was the son of Dianne Johnson. In any event Mr Plaizier advised that Dianne Johnson had died in August 2021 and that the second defendant then resided at a nursing home in Wallsend.

4. After the commencement of the proceedings the statement of claim was served on the second defendant on 13 September 2022 at the address in Wallsend given to him by Mr Plaizier. On the same day a notice to occupier was duly served on Mr Plaizier at the property on 13 September 2022.

5. No application has been made by Mr Plaizier to be added as a defendant to the proceedings by virtue of his occupation. It subsequently transpired that Mr Plaizier had engaged a solicitor to act for him as the named executor in the will of Dianne Johnson. On 15 March 2023 that solicitor filed a Notice of Intended Application for Probate in this Court. Subsequent enquiries by those acting for the plaintiff of Mr Plazier's solicitor have ascertained that Mr Plaizier ceased to give instructions to the solicitor and the solicitor is no longer acting. No application for probate has yet been filed.

6. In GEL Custodians Pty Limited v The Estate of the late Geoffrey Francis Wells [2013] NSWSC 973 I held at [63] that:

Where a claim for possession is made in relation to a person who has died and where no grant of probate or administration may have been made in their estate, the proper defendant to the proceedings is the NSW Trustee and Guardian.

7. The authorities make clear, however, that the NSW Trustee and Guardian has no duties or responsibilities as such a defendant.    

8. The plaintiff has provided notice to the NSW Trustee and Guardian of the hearing of the present notice of motion and has served the material on the NSW Trustee and Guardian. The NSW Trustee and Guardian has taken the view, correctly, that it is not obliged to take any active steps in the proceedings, and it does not appear today.

9. It was subsequently ascertained from a person called Hellen Ring, who was the sister of Christian Johnson, that Mr Johnson had also died in either January or February 2023. There is a conflict in the evidence about the date of his death. However, Mr Johnson was not a registered proprietor of the land and his only liability to the plaintiff, if established, was one to repay the loan. The NSW Trustee and Guardian is not the appropriate defendant in respect of a claim for debt.

10. Rules 6.24, 6.29 and 6.32 of the Uniform Civil Procedure Rules variously provide that a party who ought to be joined as a necessary party may be added by the Court, a party who was no longer a proper or necessary party may be removed by an order of the Court, and one party may be substituted for another.

11. In circumstances where no application for probate has been made, the NSW Trustee and Guardian is now a proper and necessary party in respect of the claim sought by the plaintiff for possession of the land.

12. In the notice of motion the plaintiff seeks also an order pursuant to s 64 of the Civil Procedure Act 2005 (NSW) that it be given leave to amend the statement of claim to substitute the NSW Trustee and Guardian as the first defendant. It is appropriate that such an order should be made.

13. Accordingly, I make these orders:

1. Grant leave to the plaintiff to file a notice of motion filed on 6 December 2022 nunc pro tunc.

2. Order that pursuant to Rule 6.24, 6.29 and 6.32 (1d) of the Uniform Civil Procedure Rules 2005 (NSW) the NSW Trustee and Guardian be substituted for Dianne Ruby Johnson as first defendant in this proceeding.

3. An order pursuant to s 64 of the Civil Procedure Act 2005 (NSW) that the plaintiff be granted leave to amend the statement of claim in accordance with the form annexed to the affidavit of David Benjamin Goldman filed on 6 December 2022.

4. The Amended Statement of Claim be served on the NSW Trustee and Guardian and notice provided to Hellen Ring and Gary Plaizier of these orders by 18 April 2023.

(5) Proceedings adjourned to 28 April 2023 at 9.30am.

(6) Liberty to apply on 24 hours’ notice.

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Decision last updated: 11 April 2023