Zanella v Madden

[2007] NSWSC 559

CITATION:	Zanella v Madden [2007] NSWSC 559
HEARING DATE(S):	28/05/07
JURISDICTION:	Equity Division
JUDGMENT OF:	Young CJ in Eq
EX TEMPORE JUDGMENT DATE:	28 May 2007
DECISION:	Defendant to the proceedings declared dead.
CATCHWORDS:	EVIDENCE [172]- Presumption of death- When presumption will arise- Defendant last seen in 1980- Evidence sufficient to presume defendant's death for purposes of s 101 of Real Property Act 1900.
LEGISLATION CITED:	Civil Procedure Act 2005, s 56 Conveyancing Act 1919, s 66G Protected Estates Act 1983, s 21C Real Property Act 1900, s 101
CASES CITED:	Grieve v The Registrar General (NSW) (1997) 8 BPR 15,729
PARTIES:	Africa Garcia Zanella (P) James Madden (D)
FILE NUMBER(S):	SC 6006/06
COUNSEL:	C Mathews (S) (P)
SOLICITORS:	Uther Webster & Evans (P)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Monday 28 May 2007

6006/06 – ZANELLA v MADDEN

JUDGMENT

1 HIS HONOUR: This is an application in respect of joint tenancy of a property at Glen Davis. The property is Torrens System land which is registered in the name of the plaintiff and the defendant as joint tenants. The problem is that the plaintiff now wishes to realise the land, but she has not heard of the defendant for many, many years.

2 The evidence from the plaintiff is to the effect that she has paid the majority of the purchase money by paying out the mortgage and that the defendant said to her when their relationship ceased about 25 years ago that she could have the property, but nothing was done about it to formalise that arrangement.

3 The evidence shows that no-one has seen or heard from the defendant since about 1980. The problem is that he came from Scotland originally and he may well have gone back to Scotland, but the plaintiff just does not know sufficient about his relations in Scotland to be able to make meaningful enquiries.

4 The defendant was a university lecturer in the School of Spanish at the University of New South Wales. The plaintiff has made enquiries through universities and has made an Internet search of American and British universities and has not been able to trace the defendant.

5 The property at Glen Davis is said to be worth about $150,000 and the defendant's interest is a quarter, so that its value would be about $37,500. Section 56 of the Civil Procedure Act 2005 says that the overriding purpose of the Act and the Rules is to facilitate the just, quick and cheap resolution of the real issues in the proceedings, and that the court must seek to give effect to the overriding purpose when it exercises any power given to it under any Act.

6 The thrust of the application was that an order be made under s 21C of the Protected Estates Act 1983 which permits the court, where there is a missing person, to appoint a manager of the missing person's estate and for the property to be dealt with and the resulting fund preserved. There is a backup application under section 66G of the Conveyancing Act 1919.

7 However, it seems to me that the balance of probabilities strongly favours the fact that the defendant is dead. He was a person who was over-addicted to alcohol. He lost his position in New South Wales, it would seem, over that. He has apparently not been hired by any overseas university. He would now be 63. He has not been heard of by his friends or anybody whom the plaintiff suspects might know him for over 20 years. He has taken no interest in his property here.

8 It may well be that in past times one would have organised advertisements in Scotland, but, when one is dealing with an estate of $37,500, bearing in mind s 56 of the Civil Procedure Act, the cost of doing so is proportionately too great. It seems to me that on the evidence before me there is sufficient material to show that the court can declare that the defendant is dead.

9 As I said in Grieve v The Registrar General (NSW) (1997) 8 BPR 15,729, it is the Registrar General who must be satisfied under s 101 of the Real Property Act 1900 that a person is dead so that a notice of death can be filed and registered. It would seem to me that the Registrar General, although not a party to these proceedings, would be justified in taking notice of this declaration of the court, however, in case there is some difficulty, I will give liberty to apply.

10 Accordingly, the court declares that the defendant is dead and gives liberty to apply on two days' notice.

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