Secure Funding Pty Ltd v Linienko

[2023] NSWSC 224

Supreme Court

New South Wales

Medium Neutral Citation:

Secure Funding Pty Ltd v Linienko [2023] NSWSC 224

Hearing dates:

15 March 2023

Date of orders:

15 March 2023

Decision date:

15 March 2023

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Leave to plaintiff to file Notice of Motion dated 6 December 2022 nunc pro tunc.

2. Pursuant to Rules 6.24, 6.29 and 6.32(1)(d) of the Uniform Civil Procedure Rules 2005, the NSW Trustee & Guardian be substituted for Svetlana Anita Linienko as first defendant in this proceeding.

3. Pursuant to section 64 of Civil Procedure Act 2005, the plaintiff be given leave to amend the Statement of Claim filed in this proceeding on 28 September 2022 in accordance with the amended Statement of Claim annexed to the Affidavit of David Benjamin Goldman.

4. Amended Statement of Claim and Notice to Occupier to be served on NSW Trustee and Guardian and the second defendant by 24 March 2023.

5. Plaintiff to serve Amended Statement of Claim together with a letter advising that the matter is listed before Davies J at 2:30pm on 31 March 2023 with the intention that final orders for possession will be made on that day.

Catchwords:

CIVIL PROCEDURE – parties – possession proceedings – where one defendant had died before proceedings commenced – where plaintiff became aware after 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) rr 6.24, 6.29, 6.32

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)
Estate of Svetlana Anita Linienko (First Defendant)
Dhana Henry Robinson (Second Defendant)

Representation:

Counsel:
O Newman (Plaintiff)
No appearances (Defendants)

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

File Number(s):

2022/289653

Publication restriction:

Nil

Judgment

1. The plaintiff seeks leave in the first instance pursuant to the Possession List Practice Note to file a notice of motion. That notice of motion is to substitute the NSW Trustee and Guardian for the first named defendant in the proceedings, Svetlana Anita Linienko. Ms Linienko died on 26 June 2022.

2. These proceedings were commenced on 28 September 2022, at a time when the plaintiff was unaware of Ms Linienko’s death. It appears to be at the time of service of the statement of claim that the process server was notified and therefore the plaintiff came to understand that Ms Linienko had died.

3. The proceedings seek possession of land in Judith Anderson Drive, Doonside, and judgment for a sum of money arising from a contract of loan dated 28 September 2010. Ms Linienko and Mr Robinson were the registered proprietors of a property in Judith Anderson Drive, Doonside. Sometime in September 2010 they executed a mortgage in favour of the plaintiff to secure the repayment under the loan agreement.

4. The second defendant Dahna Henry Robinson was served with the proceedings on 4 October 2022. He has neither appeared in the proceedings nor filed a defence to the claim.

5. 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 has made in their estate the proper defendant to the proceedings is the NSW Trustee and Guardian...”.

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

7. Whilst a plaintiff is entitled to obtain an order for possession, where the NSW Trustee and Guardian is a defendant as a representative in such circumstances, a judgment for a monetary some owing may not be given against the NSW Trustee and Guardian.

8. Rules 6.24, 6.29 and 6.32 Uniform Civil Procedure Rules 2005 (NSW) variously provide that a party who ought to be joined as a necessary party may be added by the Court; a party who is no longer a proper or necessary party may be removed by an order of the Court; and one party may be substituted for another.

9. Searches have been carried out by the plaintiff to ascertain if an application has been made for probate or letters of administration in respect of Ms Linienko’s estate. Those searches disclose that no such application has been made. In those circumstances it is appropriate that Ms Linienko should be removed as a party and the NSW Trustee and Guardian should be substituted for her as the first defendant in the proceedings.

10. I am satisfied that the second defendant and the NSW Trustee and Guardian have been informed of today’s proceedings. The NSW Trustee and Guardian indicated that it would not be taking any active steps in the proceedings. Nothing has been heard from Mr Robinson and there was no appearance for him today when the matter was called.

11. In those circumstances I make the following orders:

1. Leave to plaintiff to file Notice of Motion dated 6 December 2022 nunc pro tunc.

2. Pursuant to Rules 6.24, 6.29 and 6.32(1)(d) of the Uniform Civil Procedure Rules 2005 (NSW), the NSW Trustee & Guardian be substituted for Svetlana Anita Linienko as first defendant in this proceeding.

3. Pursuant to section 64 of Civil Procedure Act 2005 (NSW), the plaintiff be given leave to amend the Statement of Claim filed in this proceeding on 28 September 2022 in accordance with the amended Statement of Claim annexed to the Affidavit of David Benjamin Goldman.

4. Amended Statement of Claim and Notice to Occupier to be served on NSW Trustee and Guardian and the second defendant by 24 March 2023.

5. Plaintiff to serve Amended Statement of Claim together with a letter advising that the matter is listed before Davies J at 2:30pm on 31 March 2023 with the intention that final orders for possession will be made on that day.

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Decision last updated: 16 March 2023