Thomas v Stockman and Evans Solicitors

[2012] NSWCA 386

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Thomas v Stockman & Evans Solicitors [2012] NSWCA 386

Hearing dates:

19 November 2012

Decision date:

19 November 2012

Before:

Campbell JA

Decision:

(1) I refuse to grant a stay of the order for possession pending appeal;

(2) I stay the operation of the order for possession until Monday 18 February 2013;

(3) I refer the applicant to the Registrar for referral to a practitioner on the pro bono panel to enable the applicant to receive advice about whether to seek review of my decision; and

(4) I extend the time for applying for review of my decision to Wednesday 12 December 2012.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL AND NEW TRIAL - practice and procedure - stay of proceedings - applicant seeking stay of possession and sale by trustees for sale of property part-owned beneficially by applicant - whether reasonable prospects of success - not satisfied of prospects - stay pending appeal refused

PRACTICE - power of court - self-represented litigant - referral to pro bono panel - applicant vision impaired, supported by pension, and residing in regional area - serious obstacles to appellant exercising legal rights in person - referral to pro bono panel under UCPR 7.36 appropriate to consider rights to seek review of decision - stay granted for sufficient time to seek that advice

Legislation Cited:

Uniform Civil Procedure Rules, 7.36

Category:

Interlocutory applications

Parties:

Annette Carol Thomas (Applicant)
Alan Stockman (First Respondent)
Linden Ray Evans (Second Respondent)

Representation:

Counsel:
In person (Applicant)
A Stockman (Respondents)
Solicitors:
In person (Applicant)
A Stockman (Respondents)

File Number(s):

2012/324029

 Decision under appeal 

Jurisdiction:

9111

Date of Decision:

2012-09-21 00:00:00

Before:

Schmidt J

File Number(s):

2012/324029

Judgment

1. HIS HONOUR: This is a matter that relates to the possession of some land at [address] Bulahdelah, on which a house is constructed. The land originally belonged to the now deceased mother of the applicant, Miss Annette Thomas. Since the death of her mother it came to be owned by the applicant and her sister, Lorraine Thomas. The applicant took up residence in the property when she was evicted from some private rental accommodation in December 2009. She lives alone there, supporting herself on a disability pension. She is vision-impaired, which creates some considerable difficulties for her in being able to run litigation.

1. In October 2010, the applicant's sister filed a summons in the Equity Division of the Supreme Court in proceedings 2010/357841 seeking the appointment of trustees for sale of the land. An order for substituted service of the documents in those proceedings was obtained, enabling the documents to be served by leaving them in the mail box at [address] Bulahdelah.

1. The application for appointment of trustees for sale came on for hearing on 4 February 2011. On that day, Hallen AsJ made orders appointing Mr Evans and Mr Stockman as trustees for sale and vesting title in them on the statutory trusts for sale. The orders were stayed until 18 February 2011.

1. On 22 March 2012, some consent orders were made for the sale of the property and the applicant agreed to vacate after a contract for sale was entered. On 5 July 2012, another set of consent orders was made for the sale of the property. Neither of those consent orders resulted in a sale actually proceeding.

1. The present application for leave to appeal is one from a judgment that Schmidt J gave on 21 September 2012 when her Honour refused an adjournment and made an order for possession. An application for leave to appeal, a notice of appeal and a summary of argument was filed on 18 October 2012.

1. On 1 November 2012, a writ of possession was served on the applicant requiring that possession of the property be given by 12 December 2012. On 12 November, the applicant filed a notice of motion seeking a stay of both possession of the property and also of the sale of the property. It is that notice of motion that I have heard today.

1. The applicant has filed a rather diffuse set of submissions in support of her application for leave to appeal. She points out that she is a half-owner of the property, and says that she has paid the rates and effected repairs and notified the police about break-ins. She asserts that her sister has refused to negotiate and that her sister has much more secure accommodation than she has. She says that she is not familiar with legal matters. She complains about the manner in which she was represented by solicitors that she previously engaged concerning this matter. In particular, she says that the original order of 4 February 2011 was made when a solicitor acting for her acted completely contrary to instructions that he had. She has also asserted that another solicitor, Mr Adelstein, has acted contrary to instructions that she gave him. She says that she has not obtained all her papers from previous solicitors, and that she is at a disadvantage through living in the country and needing help from someone from Vision Australia on occasions when she attends Court. She says that she was ill on various occasions in 2012 which interfered with her ability to present her case properly.

1. Before a stay can be granted it is necessary for the Court to be satisfied that the appeal has at least some prospects of success. I am unable on the material that has been placed before me to come to the view that the appeal has some prospect of success. I would also mention that there has been no appeal against the order appointing the trustees for sale and that an appeal against it is by now well out of time.

1. The consequences for the applicant of the writ of possession being enforced would be extremely serious in that she would lose the only accommodation that she has. In these circumstances it seems to me that the appropriate course to take is to give the opportunity to her to seek advice about whether there should be a review of my decision refusing the stay. I will grant a stay of the order for possession only for the purpose of enabling her to seek that advice, and take whatever steps she might be advised.

1. It is also appropriate that the powers of the Court under UCPR 7.36 should be exercised to refer her to a practitioner on the pro bono panel to enable her to receive advice about whether to seek a review of my decision, and in the event that the advice is unfavourable or that any review does not succeed, to provide practical assistance in obtaining alternate accommodation. I mention that I have provided the applicant with the name of a practice to whom the Registrar is likely to refer her case, and the telephone number of that practice, so that she can get in contact with it promptly.

1. In those circumstances the orders that I make are:

(1) I refuse to grant a stay of the order for possession pending appeal;

(2) I stay the operation of the order for possession until Monday 18 February 2013;

(3) I refer the applicant to the Registrar for referral to a practitioner on the pro bono panel to enable the applicant to receive advice about whether to seek review of my decision; and

(4) I extend the time for applying for review of my decision to Wednesday 12 December 2012.

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Decision last updated: 29 November 2012