Thomas Clune v Sydney Ernest Oehlers
[2014] NSWSC 1438
•17 October 2014
Supreme Court
New South Wales
Medium Neutral Citation: Thomas Clune v Sydney Ernest Oehlers [2014] NSWSC 1438 Hearing dates: Friday 17 October 2014 Decision date: 17 October 2014 Jurisdiction: Equity Division Before: Brereton J Decision: Proceedings be adjourned to 14 November 2014. Pursuant to UCPR r 7.36, the first defendant is referred to the Registrar for referral to a barrister or solicitor on the pro bono panel for legal assistance, namely advice in relation to the proceedings, and if it then appears appropriate, representation generally in the conduct of the proceedings.
Catchwords: LEGAL AID - referral to Registrar for pro bono assistance. Legislation Cited: (NSW) Conveyancing Act 1919, s 66G
Uniform Civil Procedure Rules, r 7.36Category: Interlocutory applications Parties: Thomas Clune (plaintiff)
Sydney Ernest Oehlers (first defendant)
Keith William Oehlers (second defendant)
Harry George Oehlers (third defendant)
James Lewis Oehlers (fourth defendant)
Paul Thomas Oehlers (deceased) (fifth defendant)
Gaza Oehlers (sixth defendant)
Marie Florence Barnes (seventh defendant)
Jill Margaret Van Sand (eighth defendant)
NSW Trustee & Guardian (ninth defendant)
Michael Manson Lee t/as LW Williams & Associates (tenth defendant)Representation: Counsel:
D A Allen (plaintiff)
S E Oehlers (first defendant) (in person)
Solicitors:
Proctor & Associates (plaintiff)
File Number(s): 2014/ 211236
Judgment (ex tempore)
HIS HONOUR: Before the Court is an application by the plaintiff Thomas Clune for the appointment pursuant to (NSW) Conveyancing Act 1919, s 66G, of a trustee for sale of land of which, prima facie, it appears that the plaintiff is entitled, either beneficially or as executor of an estate, to by far in excess of one half.
The first defendant Mr Oehlers is in occupation of the property and appears to have been in occupation of it for many years. In effect, he seeks an adjournment of the proceedings, notwithstanding that when the matter was set down for hearing today, it was made very clear to him that he needed to obtain legal advice promptly because the matter was likely otherwise to proceed today.
Mr Oehlers has informed the Court that he has taken some steps to obtain Legal Aid but has not yet received a response.
On the one hand, Mr Allen for the plaintiff very fairly concedes that there is no urgency and little prejudice in an adjournment. On the other, he rightly points out that given the nature of the application, if anything fortified by the extent of the plaintiff's apparent legal and equitable interest in the property, it is unlikely that there is any utility in an adjournment because of the Court's conventional view as to the entitlement of a co-owner, let alone a majority co-owner, to an order for sale.
That said, it is desirable that justice be seen to be done as well as be done, and that Mr Oehlers have a reasonable opportunity to obtain advice.
In addition, it is just conceivable that Mr Oehlers' occupation of the property coupled, if it be the case, with payment of rates and outgoings in the meantime, and perhaps some expectation of an entitlement to remain indefinitely, might conceivably found some equitable defence to the claim. In those circumstances, I propose to adjourn the proceedings for four weeks from today, and refer Mr Oehlers to the Registrar for pro bono assistance if that can be arranged.
The Court orders that:
(1) The proceedings be adjourned to 14 November 2014 at 9.30 before me.
(2) Pursuant to Uniform Civil Procedure Rules r 7.36, the first defendant is referred to the Registrar for referral to a barrister or solicitor on the pro bono panel for legal assistance, namely advice in relation to the proceedings, and if it then appears appropriate, representation generally in the conduct of the proceedings.
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Decision last updated: 21 October 2014
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