Tamworth City Council v Vorhauer

[2003] NSWSC 640

CITATION:	Tamworth City Council v Vorhauer & Anor [2003] NSWSC 640
HEARING DATE(S):	16 July 2003
JUDGMENT DATE:	16 July 2003
JURISDICTION:	Common Law Division
JUDGMENT OF:	Master Malpass
DECISION:	I order that both the defence and the cross-claim be struck out. Save as to what is sought in para 3 of the Minute of Judgment filed in court on 23 August 2002 I make orders in terms of the Minute (which has been initialled by me and placed with the papers). In lieu of what appears in para 3 thereof I order the first defendant to pay the plaintiff's costs of the application and of the proceedings to date. The proceedings are to be returned to the Possession List.
CATCHWORDS:	Claim for possession - application that should have been dealt with in the Possession List - striking out of pleadings and entry of judgment.
LEGISLATION CITED:	Local Government Act 1993, s 713.
CASES CITED:	Coco v The Queen 179 CLR 427.
PARTIES :	Tamworth City Council (Plaintiff) v Florence Amelia Vorhauer (First Defendant) Lisa Amelia Vorhauer by her tutor Florence Vorhauer (Second Defendant)
FILE NUMBER(S):	SC 12000 of 2002
COUNSEL:	P J McEwen SC (Plaintiff) N/A (Defendants) A-G NSW Intervening N/A
SOLICITORS:	Everingham Solomons (Plaintiff) In person (First Defendant) N/A (Second Defendant) A-G NSW Intervening - I V Knight - Crown Solicitor

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

Wednesday 16 July 2003

12000 of 2002 Tamworth City Council v Florence Amelia Vorhauer Anor.

JUDGMENT

1 MASTER: At the outset I should observe that this application should have remained to be dealt with in the Possession List. It is one of the many instances of applications being referred out of that list so that they can be dealt with elsewhere. Upon the determination of this application the proceedings are to be returned to the Possession List.

2 The first defendant is the person who is the registered proprietor of a property known as 19 Wilburtree Street, Tamworth. The second defendant claims to be a tenant residing in the property. The plaintiff has sold the premises pursuant to s 713 of the Local Government Act 1993 (for unpaid rates).

3 In July 2002 the plaintiff commenced proceedings to recover possession of the property. Since that time a lot of activity has been generated in the proceedings. Many applications have been made to the court. A lot of valuable court time has been occupied.

4 In September 2002 the first defendant filed a defence and cross-claim in the proceedings. Since that time the second defendant has been added as a party and the first defendant has been appointed as her tutor. At this stage no appearance has been filed on behalf of the second defendant.

5 In October 2002 the plaintiff applied to the court to have, inter alia, the defence and cross-claim struck out and for the entry of judgment. The application was ultimately listed for hearing and that hearing took place today.

6 The first defendant is a litigant in person who is presently in prison. She appears and opposes the application.

7 The first defendant has placed before the court a number of documents. The documents were received as exhibit one. I have had regard to the documents as well as the other material filed by the first defendant in the proceedings. As requested by the first defendant I have also read passages from the decision in Coco v The Queen 179 CLR 427. I have also listened to the lengthy submissions made by the first defendant in opposition to the application.

8 Counsel for the plaintiff has prepared detailed written submissions which clearly demonstrate his client’s entitlement to relief. For present purposes it is unnecessary to canvass the detailed submissions. Largely, the pleadings speak for themselves.

9 I have carefully read both the defence and the cross-claim. I am satisfied that the defence does not raise any matter which could constitute a defence to the plaintiff's claim for possession. I am satisfied that the cross-claim does not either plead or disclose any reasonable cause of action. Accordingly, I order that both the defence and the cross-claim be struck out.

10 The plaintiff also seeks further relief in terms of the Minute of Judgment filed in court on 23 August 2002. The plaintiff is presently entitled to enter default judgment. Save as to a minor matter that needs correction, I am satisfied that the plaintiff is entitled to the relief sought therein.

11 Accordingly, save as to what is sought in para 3 of that document I make orders in terms of the Minute (which has been initialled by me and placed with the papers). In lieu of what appears in para 3 thereof I order the first defendant to pay the plaintiff's costs of the application and of the proceedings to date.

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Last Modified: 07/21/2003