Secure Funding Pty Ltd v Linienko (No 2)

[2023] NSWSC 386

Supreme Court

New South Wales

Medium Neutral Citation:

Secure Funding Pty Ltd v Linienko (No 2) [2023] NSWSC 386

Hearing dates:

18 April 2023

Date of orders:

18 April 2023

Decision date:

18 April 2023

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Judgment for the Plaintiff for possession of the whole land described in the Certificate of Title Folio Identifier Lot 178 in Deposited Plan 255548 and known as 8 Judith Anderson Drive, Doonside NSW 2767.

2. Listed for Directions before Davies J at 9:30am on 28 April 2023.

3. Liberty to apply on 2 days’ notice.

Catchwords:

LAND LAW – possession of land – where one mortgagor dead and the NSW Trustee and Guardian substituted as defendant – where other defendant has not filed defence to claim – where other defendant entered into conditional contract to sell land on obtaining letters of administration – no consent obtained from mortgagee to sale – judgment for possession given

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Secure Funding Pty Ltd v Linienko [2023] NSWSC 224

Texts Cited:

Nil

Category:

Principal judgment

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 (First Defendant)
D Robinson (in person) (Second Defendant)

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

File Number(s):

2022/289653

Publication restriction:

Nil

Judgment

1. These proceedings commenced on 28 September 2022, seeking possession of a property in Judith Anderson Drive, Doonside.

2. The two defendants named in the proceedings, Svetlana Anita Linienko and Dhana Henry Robinson, were the registered proprietors of the land. Unbeknown to the plaintiff at the time of commencement of the proceedings Ms Linienko had died on 26 June 2022.

3. The two named defendants had provided a mortgage to the plaintiff to secure obligations under a loan agreement entered into on 28 September 2010. Default occurred on 5 July 2022, in the payment of interest, and that default appears to have occurred because Ms Linienko had died the previous week.

4. On 15 March 2023, I made orders under the Uniform Civil Procedure Rules 2005 (NSW) for the NSW Trustee and Guardian to be substituted for the first defendant by reason of her death: Secure Funding Pty Ltd v Linienko [2023] NSWSC 224. I also gave leave for the plaintiff to amend its statement of claim to reflect the change of the identity of the first defendant. The first defendant, who was substituted, was the NSW Trustee and Guardian.

5. In accordance with its usual practice, the NSW Trustee and Guardian has simply been the passive recipient of process because it is the legal person substituting for the deceased until letters of administration or probate have been granted to somebody in respect of Ms Linienko's estate.

6. The amended statement of claim has also been served, together with a notice to occupier and a copy of my earlier judgment, on the second defendant (Mr Robinson). Mr Robinson has today appeared for the first time in these proceedings. He has not filed a Notice of Appearance nor any defence to the plaintiff’s claim.

7. The amended statement of claim together with notice of today’s hearing has been served on the NSW Trustee and Guardian.    

8. On 14 April 2023, Mr Robinson entered into a contract to sell the property, but the consent of the plaintiff was not obtained to that sale. Pursuant to the terms of the mortgage, the mortgagors were not permitted to deal with the land without the consent of the plaintiff. The contract is conditional to the extent that it may be rescinded by either party if letters of administration have not been obtained by Mr Robinson within a five-month period from the date of the contract.

9. The plaintiff does not wish to give consent to the sale of the land by Mr Robinson in those circumstances, both because of the delay which it involves and the uncertainty of the finalisation of that contract. The plaintiff therefore seeks possession of the land on the basis of the default which is established by the affidavit of Tuan Nimh Tran the assets realisation officer of the plaintiff, and the fact there is no defence to the claim.

10. I am satisfied from that affidavit that default has occurred, and I am satisfied from the terms of the loan agreement and the mortgage that the plaintiff is entitled to an order for possession of the property.

11. At the time Mr Robinson was served with the original statement of claim he informed the process server that no other person was residing in the premises. In any event, when the amended statement of claim was served, so too was a notice to occupier, and no person other than Mr Robinson has appeared or sought to be joined as a defendant to the proceedings.

12. Correspondence has been entered into at some length between the plaintiff's solicitors and, in the first instance, with Mr Robinson, and subsequently with solicitors, Alexander Lee & Associates, who are acting for Mr Robinson on the sale of the land.

13. On 17 April 2023, an open offer was made by the solicitors acting for the plaintiff to Mr Robinson and his solicitors concerning how the sale of the land should be effected. Mr Robinson agrees that the plaintiff should be entitled to an order for possession of the property today, but he wishes to have time to discuss with his solicitors the other terms of the offer that was made only yesterday evening.

14. It is appropriate therefore that I should make an order for possession in favour of the plaintiff but thereafter adjourn the proceedings to enable Mr Robinson to obtain legal advice. When the proceedings return on the adjourned date further debate can take place in relation to the future sale of the land, and whether and when any writ for possession should be issued.

15. Accordingly, I make the following orders.

1. Judgment for the plaintiff for possession of the whole of the land in certificate of title identifier, Lot 178 in deposited plan 255548 situated at and known as 8 Judith Anderson Drive, Doonside, New South Wales 2767.

2. I stand the proceedings over to 28 April at 9.30am before me.

3. The parties have liberty to apply on two days' notice.

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Decision last updated: 18 April 2023