Winterbottom v Lucas
[2014] NSWSC 1384
•03 October 2014
Supreme Court
New South Wales
Medium Neutral Citation: Winterbottom v Lucas [2014] NSWSC 1384 Hearing dates: 3/10/2014 Decision date: 03 October 2014 Jurisdiction: Common Law Before: Campbell J Decision: See paragraph 5
Catchwords: PROCEDURE - civil - possession matter - where degree of urgency - ex parte application for leave to file statement of claim and affidavits in court and order an early return Category: Interlocutory applications Parties: David John Winterbottom (Plaintiff)
Keith Donald Lucas (Defendant)Representation: Self-represented (plaintiff)
D.C. Price (defendant)
Solicitors:
File Number(s): 2014/290918
EX TEMPORE Judgment (Revised)
I have just given leave for a statement of claim to be filed in court. The plaintiff is Mr David John Winterbottom, who is the receiver appointed to real property at Ingleside under a mortgage held by the National Australia Bank over that property.
From the affidavit of Mr Winterbottom sworn on 3 October, which I also gave leave to be filed in court, the mortgagors surrendered possession of the property to the receivers on 25 July 2014. The receivers assumed possession on that day and have since taken steps to market the property under the powers of sale conferred upon them by the mortgage. Indeed, agents were retained on or about 14 August 2014. However, sometime between 12 and 17 September 2014, the first defendant has purported to retake possession, has changed the locks and sought to exclude the receivers and managers from the property. For this reason the matter has come before me as the Common Law Duty Judge urgently to enable the matter to be, as it were, fast tracked beyond the Court's normal procedures in possession matters. The need for that fast tracking arises out of the somewhat particular circumstances of the case to which I have just made reference.
From the affidavit of John Maiden, an officer of the bank, sworn on 2 October 2014, it appears that default in this matter occurred arguably as long ago as 16 June 2011. As is common in matters in the possession list these days, the default has affected about three different facilities operated by the defendants and secured by the mortgage over the property. As at the time of the demand in June 2011, the bank asserted that the indebtedness in aggregate under all three facilities was just shy of $5 million. The bank says that the defendants defaulted when they failed to meet its demands for repayment.
It seems to me that no adverse order is being sought today against the defendants, and there is no reason why I should not proceed ex-parte - as Mr Price of counsel asks me to do - given that the purpose is, as I have said, to fast-track the usual procedures. I am of the view, given what I have described as the particular circumstances of the case, that that is an appropriate approach to take.
I make the following orders:
(1) Upon the undertaking of the solicitor for the plaintiff to pay the applicable filing fee, the plaintiff has leave to file the statement of claim in court today, 3 October 2014.
(2) The statement of claim is returnable instanter.
(3) The plaintiff has leave to file the affidavits of David John Winterbottom sworn 3/10/14 and John Maiden sworn 2 October 2014 in court.
(4) I stand the proceedings over for directions before the Common Law Duty Judge at 10am on 15 October 2014.
(5) I direct that the orders pronounced today be entered forthwith.
(6) I direct the plaintiff's solicitor take out these orders and serve them with the statement of claim.
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Decision last updated: 05 November 2014
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