William Honner as Trustee for Sale of 8 Saiala Road, East Killara NSW 2071 v Chow

[2023] NSWSC 1346

Supreme Court

New South Wales

Medium Neutral Citation:

William Honner as Trustee for Sale of 8 Saiala Road, East Killara NSW 2071 v Chow [2023] NSWSC 1346

Hearing dates:

8 November 2023

Date of orders:

8 November 2023

Decision date:

08 November 2023

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Notice of Motion filed by Joyce Hoi Zee Au dated 2 November 2023 is dismissed.

2. Order pursuant to rule 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) that the Defence filed 27 September 2023 be struck out.

3. Judgment for the plaintiffs for possession the

whole of the land comprised in certificate of title folio identifier B/381023, being the land situated at and known as 8 Saiala Road, East Killara NSW 2071.

4. Leave is granted to the plaintiffs to issue a writ of possession forthwith such writ not to be executed prior to 31 January 2024.

5. Order that the defendant is to pay the plaintiffs’ costs of the proceedings.

6. The applicant Joyce Hoi Zee Au is to pay the plaintiff’s costs of the notice of motion.

Catchwords:

LAND LAW – possession of land – entitlement of trustees appointed pursuant to s 66G of the Conveyancing Act 1919 – where defence by other former registered proprietor discloses no defence to claim for possession - application by occupier claiming to have expended money on property – no interest shown to be joined as a defendant to possession proceedings – application dismissed – defence struck out

Legislation Cited:

Conveyancing Act 1919 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Arrow Custodians Pty Ltd v Pine Forests of Australia Pty Ltd (2008) NSWSC 839

Foundas v Arambatzis (No 3) [2020] NSWCA 87

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

William Honner as Trustee for Sale of 8 Saiala Road, East Killara NSW 2071 (First Plaintiff)
Andrew John Scott as Trustee for Sale of 8 Saiala Road, East Killara NSW 2071 (Second Plaintiff)
Pui Ling Chow (Defendant)

Representation:

Counsel:
D F Elliott (Plaintiffs)
J Hoi Zee Au (Defendant)
J Hoi Zee (in person as Applicant on the Motion)

Solicitors:
Grace Lawyers - NSW (Plaintiffs)
Kelly Partners Group (Defendant)

File Number(s):

2023/149728

Publication restriction:

Nil

Judgment

1. The plaintiffs are trustees for sale appointed pursuant to s 66G of the Conveyancing Act 1919 (NSW) by orders of this Court made on 22 November 2022. Those orders had been sought by the trustees in bankruptcy of the defendant’s husband. The trustees in bankruptcy were registered proprietors of the land along with the defendant, Pui Ling Chow. The defendant remains in occupation of the land.

2. Orders were made for substituted service of the proceedings. In addition, a Notice to Occupier was served in accordance with r 6.8 of the Uniform Civil Procedure Rules 2005 (NSW). The other occupier of the property is the daughter of the defendant, Joyce Hoi Zee Au. She is also a solicitor and is now acting as the solicitor for the defendant.

3. Ms Au, acting for herself, has filed a notice of motion on 2 November 2023 seeking an order that she be joined as a defendant in the proceedings. She is well outside of the 10 day’ period after service of the Notice to Occupier: see r 6.8(1)(b)(ii) UCPR. An affidavit in support of the notice of motion by her of 1 November 2023 explains that at the time of the service of the Notice to Occupier she was absent overseas. The Notice to Occupier was served sometime in May 2023.

4. The applicant says in her affidavit that she returned from overseas on 21 May and only became aware of the Notice to Occupier at that time. No explanation has been provided for why the present application was not filed until 2 November 2023, apart from the fact that she says that between June and September 2023 she engaged in discussions with one of the trustees with a view to purchasing the property.

5. The applicant does not disclose in her affidavit any interest that she has in the land. She informed me orally that she has expended moneys on the land from time to time, and that appears to be the interest that she claims. However, an order under s 66G converts any interest that a person might have in the land, including registered proprietors, into an interest in the proceeds of the sale which will ultimately be effected by the trustees. If the applicant has some claim based on a constructive or resulting trust, such a claim needs to be brought in separate proceedings in relation to the proceeds of sale. The applicant does not establish any interest in the land to justify being joined as a defendant to proceedings seeking only possession of the land.

6. The defendant to the proceedings filed a defence on 27 September 2023. Most of the defence deals with the defendant's desire to purchase the land and to negotiate with the trustees to do so. The defence also complains about the treatment that the defendant says she has received at the hands of the trustees. She denies that she is wrongfully in possession of the land, but she does not identify on what basis that denial is made.

7. It is clear from authorities such as Arrow Custodians Pty Ltd v Pine Forests of Australia Pty Ltd (2008) NSWSC 839 at [34] and Foundas v Arambatzis (No 3) [2020] NSWCA 87 at [8] - [11] that the rights of a registered proprietor are converted into an interest on the part of that person to the proceeds of sale when an order under s 66G is made.

8. The defence filed 27 September 2023 does not disclose any defence to the plaintiffs' claim for possession of the property. It should be struck out.

9. The plaintiffs are entitled to possession by virtue of having been appointed trustees for sale pursuant to s 66G of the Conveyancing Act by this Court. That is not to say, of course, that the defendant, or even the applicant for that matter, might not have the right to negotiate with the trustees with a view to purchasing the land, but that is an entirely separate matter from their right to remain in occupation of the land.

10. I note that the plaintiffs do not oppose execution of a writ of possession being delayed until 31 January 2024.

11. Accordingly, I make the following orders:

1. Notice of Motion filed by Joyce Hoi Zee Au dated 2 November 2023 is dismissed.

2. Order pursuant to rule 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) that the Defence filed 27 September 2023 be struck out.

3. Judgment for the plaintiffs for possession the whole of the land comprised in certificate of title folio identifier B/381023, being the land situated at and known as 8 Saiala Road, East Kiliara NSW 2071.

4. Leave is granted to the plaintiffs to issue a writ of possession forthwith such writ not to be executed prior to 31 January 2024.

5. Order that the defendant is to pay the plaintiffs’ costs of the proceedings.

6. The applicant Joyce Hoi Zee Au is to pay the plaintiff’s costs of the notice of motion.

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Decision last updated: 09 November 2023