Bailey v Boyd

Supreme Court of NSW|2018-03-29|Before: Adams J, Sackar J

Judgment (REVISED FROM EX TEMPORE)

By statement of claim filed on 13 November 2017, the plaintiffs, Liam Bailey and Timothy Daley, seek possession of the land comprised in 10/DP28150 being the land situated at 12 Fletcher Avenue Miranda ("the property"). Mr Bailey and Mr Daley are trustees appointed as trustees for the sale of the property by Sackar J on 22 September 2016: Catherine Margaret Thorne, as executrix of the Estate of the late Betty McAuley v Ian Geoffrey Boyd and Dawn Kathleen Boyd [2016] NSWSC 1344 ("Thorn v Boyd").
The first defendant is Ian Geoffrey Boyd and the second defendant is Dawn Kathleen Boyd. At the relevant time they were the registered proprietors of the property as joint tenants.
On 23 August 2017, the Court of Appeal dismissed an appeal against the trustees' appointment brought by Mrs Boyd: Boyd v Thorn [2017] NSWCA 210 ("Boyd v Thorn").
On 9 January 2018, a defence was filed in these proceedings for possession on behalf of the second defendant, Mrs Boyd, in which she describes herself as a non-party to the proceedings. The defence is described as being filed by a "third party". Put simply, Mrs Boyd does not accept the Court of Appeal decision and denies the validity of the appointment of the trustees and the validity of these proceedings. Mrs Boyd was unrepresented at that time.

Background

These proceedings for possession follow on from protracted proceedings in the Equity Division of this Court which commenced in 2012.
In 2011, Mr Boyd had power of attorney for his aunt, Betty McAuley. He gifted himself $260,000 out of her Estate. Proceedings were brought by Ms McAuley to recover that amount. She died shortly after the proceedings were commenced. Catherine Margaret Thorn, as executrix of the Estate of the late Mrs McAuley, continued those proceedings which were first heard by Robb J.
In a judgment of 25 August 2014, Robb J found that Mr Boyd had procured $260,000 from Mrs McAuley by unconscionable conduct: Catherine Margaret Thorn, as Executrix of the Estate of the late Berry McAuley v Ian Geoffrey Boyd [2014] NSWSC 1159. At [129] of that decision, his Honour noted that Mr Boyd had caused Mrs McAuley to take steps to implement the transfer of $260,000 into his account, and then retained the money, which was unconscionable, and that it would be unconscionable for him to keep that money.
On 6 November 2014, his Honour made declarations to that effect and ordered that the Estate was entitled to trace the sum of $260,000 into any property in relation to which it had been applied ("the first orders"). The declaration and orders were in these terms: "The Court Declares: 1. That upon receipt of the sum of $260,000 on 6 August 2009 from Mrs Betty McAuley, in circumstances involving unconscionable conduct and breach of the defendant's fiduciary duty, the defendant held such monies on trust for Betty McAuley. The Court orders: 1. The transfer of $260,000 from Mrs Betty McAuley to the defendant dated 6 August 2009 is set aside. 2. Judgment in the sum of $260,000 to the plaintiff in her capacity as executrix of the estate of Betty McAuley. 3. The defendant is to pay interest on the sum of $260,000 at the rate prescribed in UCPR 6.12(8), from 6 August 2009 to the date of this order. 4. The plaintiff is entitled to trace the sum of $260,000 obtained from Mrs Betty McAuley in circumstances involving unconscionable conduct and breach of fiduciary duty, into any property that the defendant acquired with that money, or in respect of which the defendant repaid a mortgage secured on the property with that money, or any part thereof."
After a further hearing on 13 March 2015, Robb J made findings that $200,000 of the amount obtained had been used to pay off the mortgage on the property. His Honour declared that Mr Boyd held his interest in the property upon a constructive trust for the Estate to the value of $200,000, and that the Estate's judgment debt constituted an equitable charge on Mr Boyd's interest in that property. His Honour granted liberty to the Estate to apply for an order under s 66G of the Conveyancing Act 1919 (NSW) for the appointment of trustees for the sale of the subject property ("the second orders").
Despite being a registered proprietor of the property, Mrs Boyd was not a party to the proceedings at that stage.
Mrs Boyd subsequently applied to White J for orders setting aside the second orders made on 13 March 2015.
Justice White subsequently set these orders aside. His Honour was satisfied that Mrs Boyd should have been joined as a party to the proceedings, at least from the time that the Estate sought the declarations and orders pertaining to the property. His Honour ordered that Mrs Boyd be joined as a party to the proceedings.
A further hearing subsequently proceeded in 2016 before Sackar J. Mrs Boyd appeared without legal representation at that hearing. During the hearing she sought, for the first time, to have the first orders set aside; that is, the finding of unconscionable conduct made by Robb J. Sackar J declined to revisit that issue in circumstances where no application to have that order set aside was raised before White J. Sackar J subsequently made orders on 22 September 2016 which included the following: "1. The first defendant holds his unencumbered interest in the property comprising Lot 10 in Deposited Plan 28150 at Sutherland (Property), upon a constructive trust for the plaintiff to the value of $200,000.00. 2. So much of that judgment debt as represents a principal sum of $200,000.00 and an award of pre-judgment interest under s100 of the Civil Procedure Act together with interest accruing after judgment on that portion of the judgment debt, pursuant to s 101 of the Civil Procedure Act, constitutes an equitable charge on the first defendant's title to the Property. The Court orders that: 1. Timothy William Daley and Liam Bailey are appointed as Trustees for sale of the Property, pursuant to section 66G of the Conveyancing Act 1919 (NSW). 2. The Property be vested in such Trustees subject to any encumbrances affecting the entirety of the land but free from encumbrances (if any) affecting any undivided share or shares thereof to be held by the said Trustee upon the statutory trust for sale under Division 6 of Part 4 of the Conveyancing Act 1919."
Both Mr and Mrs Boyd appealed to the Court of Appeal against different aspects of the decision of Sackar J. It is sufficient for present purposes to note that ground one was brought by Mrs Boyd in which she argued that Sackar J should have permitted her to make submissions with respect to Robb J's finding of unconscionable conduct against the Estate. In other words, she asserted that she had a right to re-litigate this point before Sackar J. The primary contention of Mrs Boyd was that, because she was not party to the proceedings before Robb J, she was not bound by his Honours findings and orders made on 25 August 2014 and 6 November 2016.
On 23 August 2017, the Court of Appeal dismissed the appeal by majority (Leeming JA and Emmett AJA, Macfarlan JA dissenting). Leeming JA and Emmett AJA observed that, once the Estate had sought proprietary relief against land of which Mrs Boyd was a joint owner, it was open for her to seek to challenge the finding of breach of duty and unconscionability made by Robb J in 2014. However, Mrs Boyd only challenged some of the orders made by Robb J and failed to challenge the declaratory and substantive orders his Honour had made on 6 November 2014, those orders being based on the finding that Mr Boyd had obtained the $260,000 from Mrs McAuley by unconscionable conduct and breach of fiduciary duty. Leeming JA and Emmett AJA ultimately held that the scope of the rehearing before Sackar J was limited to the orders of Robb J that had been successfully challenged by Mrs Boyd before White J. Mrs Boyd was not at liberty to seek to raise issues inconsistent with the orders that she had not challenged.
No application to seek special leave to appeal to the High Court against this decision was ever filed.
On 29 September 2017, proceedings for judicial review were commenced in the Equity Division seeking a declaration that the orders of White and Sackar JJ were beyond power and should be set aside. The plaintiff in those proceedings was Mrs Boyd and the defendant was Mrs Thorn, as executrix for the Estate of the late Betty McAuley.
On 23 February 2018, Mrs Thorn filed a notice of motion seeking to have the proceedings summarily dismissed pursuant to UCPR r 13.4. Mrs Boyd was represented on that occasion by Mr Raphael of counsel. That matter came before Rein J for hearing on 16 March 2018. His Honour delivered an ex tempore judgement dismissing the application. In doing so his Honour observed: "When a judge of this Court has given a judgment, it is not open to the disaffected party to that judgment (or orders made consequent upon the reasons for judgment) to seek a review of that judgment and orders by another judge of this Division. The course open to that disaffected party is to appeal to the Court of Appeal. Mrs Boyd has exercised that right and the Court of Appeal by majority has determined the appeal adversely to her. The decision of the Court of Appeal stands unless and until the High Court says otherwise. Mr Raphael, in the course of submissions today, conceded that there is no power in a single judge of this Court to alter what Robb J held in relation to the Unconscionable Conduct Finding and what Sackar J and the Court of Appeal have determined in respect of the Miranda Property and that Mrs Boyd's proceedings must be dismissed. That concession was, without a shadow of doubt, correctly made and it follows that the proceedings must be dismissed."

The evidence

This notice of motion for summary judgment in these possession proceedings came on for hearing before me on 29 March 2018. Mr Raphael of counsel appeared for Mr and Mrs Boyd and Mr Cornish of counsel appeared for the plaintiffs.
Mr Cornish relied upon an affidavit of Sarah Capello made on 20 February 2018 and an affidavit of Mr Liam Bailey affirmed on 22 February 2018. Written submissions were filed as well as a chronology. Mr Cornish also relied upon the recent statement of claim filed by Mrs Boyd in the Equity division and the reasons of Rein J for dismissing that application. Objection was taken to those documents being before me on the basis of relevance, given that the parties in those proceedings were different to the present proceedings. I indicated that I proposed to permit Mr Cornish to rely on those documents in these proceedings.
The defendants relied upon Mr Raphael's written submissions filed on 29 March 2018. I placed on the record that, prior to coming into court that morning, my associate had been emailed an affidavit of Diane Kanaan dated 29 March 2018. Mr Raphael confirmed that the defendants relied upon that affidavit.
The affidavit evidence and written submissions of the parties as at 29 March 2018 can be summarised as follows.

The plaintiff's evidence

On 22 February 2018, Mr Liam Bailey, the first plaintiff in these proceedings, swore an affidavit that deposes the following. On 22 September 2016 he and Timothy Daley were appointed trustees of the property pursuant to the order by Sackar J. Mr Bailey annexed a title search of the property which describes the defendants as being tenants in common in equal shares. They were previously joint tenants of the property. They continue to reside at the property. Catherine Thorn has lodged two caveats and there is a mortgage registered in favour of ING bank (Australia) Limited.
Mr Bailey stated that in his opinion, based on his previous dealings with the defendants, the marketing and sale of the property would proceed more effectively if the Boyds were no longer residing at the property.
On about 28 September 2016, he had contacted a real estate agent he had worked with for over 10 years to discuss the sale of the property. The agent in question has over 30 years of experience as a real estate agent.
On 4 October 2016, Mr Bailey issued a notice to vacate to the defendants pursuant to order 9 of the 22 September 2016 orders.
On 5 October 2016, Mr Bailey had a conversation with the valuer who had sought access to the property for valuation purposes and was told by Mr Boyd that he was considering his options and would not be co-operating with the orders of the court.
On or about 10 October 2016, the real estate agent indicated that she required access to the property to provide an accurate appraisal and estimate. She was asked to provide a "curb side" appraisal in circumstances where the occupiers would not give access. That appraisal, made in October 2016, valued the property at between $1,150,000 and $1,250,000.
On or around 4 November 2016, Mr Bailey was informed by his solicitors that a notice of appeal was filed in these proceedings and that the sale of the property was placed on hold until the appeal could be determined.
On 23 August 2017, the Court of Appeal dismissed the appeal. On 24 August, Mr Bailey informed the real estate agent that the sale of the property could now proceed. The real estate agent told Mr Bailey that, in order to sell the property for the maximum amount, it would be best if Mr and Mrs Boyd moved out.
On 25 August 2017, Mr Bailey caused a notice to vacate to be sent to Mr and Mrs Boyd. On 28 August 2017, Mr Bailey had a telephone conversation with Mrs Boyd during which Mrs Boyd said that her solicitors told her that she did not have to vacate the property and that she did not wish to do so. She also asked whether the executrix would be willing to settle the matter, in response to which Mr Boyd suggested she contact her in that respect.
Mr Bailey and Mr Daley decided to allow Mr and Mrs Boyd a short period to explore a settlement before proceeding to sell the property. On 21 September 2017, Mr Bailey formed the view that settlement discussions had been exhausted and were unsuccessful. He and Mr Daley decided it would be prudent to proceed with the sale of the property expeditiously.
Mr and Mrs Boyd failed to vacate the property by 26 September 2017. Mr Bailey and Mr Daley have been denied access to the property.
On 20 February 2018, Ms Sarah Cappello, solicitor for the plaintiffs, swore an affidavit in which she confirms some of the events provided by Mr Bailey and provides the following further material.
On 11 September 2017, subsequent to the dismissal of the appeal by the Court of Appeal, Ms Cappello received a copy of correspondence from Mr and Mrs Boyd's solicitor which had been sent to Mrs Thorn, as executrix of the Estate, in addition to receiving correspondence directly from Mr and Mrs Boyd's solicitor. The correspondence confirmed that Mr and Mrs Boyd intended to pay the amount of $200,000 plus interest charged to the Estate by 30 September 2017, which was suggested to obviate the need to sell the property.
On 21 September 2017, Ms Cappello received further correspondence sent by Ms Thorn's solicitor to Mr and Mr's Boyd's solicitor. The letter referred to a letter dated 15 September 2017 and states that the terms of the offer by Mr and Mrs Boyd were unacceptable and that the sale would proceed. A copy of the 15 September 2017 letter was not annexed to Ms Cappello's affidavit, but, in any event, it is clear that no settlement agreement was reached between Mr and Mrs Boyd and Ms Thorn.
On 11 October 2017, a letter was sent from Ms Cappello's law firm to Mr and Mrs Boyd's solicitor stating that possession proceedings were to be commenced in the Supreme Court as the notice to vacate issued on 25 August 2017 had not been complied with. On that same day, Mr and Mrs Boyd's solicitors confirmed that they did not act for them. On 12 October 2017, Ms Cappello sent correspondence to the same effect directly to Mr and Mrs Boyd by way of registered post. That letter was returned to Ms Cappello by Australia Post on 16 October 2017 with a note that the "customer refused" service.
On 12 October 2017, Ms Cappello received a letter from Mr Boyd confirming that he had received the correspondence from his previous solicitor and that Mrs Boyd had filed a summons in the Supreme Court on 29 September 2017 seeking to "have the entire proceedings voided" by way of judicial review. That application was dismissed by Rein J on 16 March 2018.
The current proceedings were commenced by the plaintiffs on 13 November 2017 by way of statement of claim.

The defendant's evidence

Diane Kanaan is a Senior Paralegal in the employ of Penhall and Co Lawyers. She deposed that that firm received instructions from the first and second defendants to make an application for leave to appeal and an extension of time for leave to appeal to the High Court of Australia against the decision of the Court of Appeal of 23 August 2017. She indicated that matter had been the subject of initial discussion with senior and junior counsel and that it was anticipated that the application would be settled by counsel and ready for lodgement within 14 days (from that day) at the latest.

The plaintiff's written submissions

After setting out the relevant provisions of the UCPR and principles pertaining to summary judgement, the plaintiff's position was succinctly put as follows: the defence appears to rest entirely upon the proposition that the appointment order is not effective according to its terms and it should be ignored by the Court. This position is untenable and an abuse. The fact that there has been no appeal against the Court of Appeal judgment was noted.
It was further noted that, at [21] of the decision of Sackar J in Thorn v Boyd, his Honour observed: "In the current proceedings, no additional evidence, in fact no evidence at all, has been put before me to suggest that Robb J's findings in this regard were incorrect. I have however carefully reviewed the evidence tendered before me and formed my own conclusions, to which I shall come in due course."

The defendants written submissions

The written submissions filed on behalf of the defendants focused on the relevant principles in relation to strike out applications and dismissal of proceedings generally. It was then submitted that the Court of Appeal did not deal with the points pleaded in the defence. It was conceded that arguably the issues were raised by Leeming J and Emmett AJA. It was submitted that [71]-[72] of the decision of the Court of Appeal was wrong. In particular, reliance was placed upon the observation of Leeming JA that Mrs Boyd's entitlement to be joined as a party and be heard in accordance with the decision in John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 at [134] was not unqualified.
It was further submitted that the decision of Sackar J to appoint trustees for sale and, at the same time, to charge the interest of Mr Boyd with the sum apparently claimed, is wholly antithetical to the obligations of the mortgagee as opposed to the right to appoint trustees for sale pursuant to s.66G(1) of the Conveyancing Act. It was submitted that because of this flaw in appointing the trustees for sale, when there is also a charging order, the plaintiffs are in a contradictory situation as to precisely what their obligations are to both Mr and Mrs Boyd as well is those on whose behalf they were appointed.
It was submitted that the defendants should be permitted "their day in court" and that the problem was "by no means so unarguable that they should be denied this in court."

The proceedings on 29 March 2018

At the hearing of the motion on 29 March 2018, I raised with the defendants' counsel the relevance of the question of special leave now being sought out of time. In particular, I sought confirmation from Mr Raphael that, if special leave was refused, there would be no defence in these proceedings. He responded "if special leave was refused, yes, we are out of court, as it were." When I suggested to him that the decision in the Court of Appeal stands in the way of the defence he submitted that, because these are strikeout proceedings, all he has to demonstrate is that the defence "has legs upon which to run." I again enquired of Mr Raphael whether it was conceded that, if the application to seek special leave out of time was unsuccessful, then there is no further defence in these proceedings, to which he responded: "Absolutely, in open court, yes. There is no defence."
Despite this concession, a somewhat contradictory submission was also put, namely, that the defendants now seek to challenge the appointment order in separate proceedings against a "wholly different enemy" and that there is some chance of success.
It soon became clear that the defendants' position was, in effect, that they sought a temporary stay of these proceedings pending resolution of the extension of time to seek special leave to the High Court against the decision of the Court of Appeal. When I enquired why there was no evidence before the court today for the delay in seeking special leave Mr Raphael stated the following: "I had a conversation with my client on Tuesday of this week. I had earlier asked what could be done in relation to that. My client has spoken to certain relatives and the money will be there and placed in my solicitor's trust account on Tuesday. That's what we have been promised. I have had discussions with senior counsel for whom I have the highest respect. I will name him if your Honour wishes. It's Michael Cashion SC. He has not had a proper opportunity to look at the matter since that decision was made on the Tuesday and today is Thursday. He is working with me on it on Tuesday afternoon and we would expect to produce something substantial at the very least, the first draft of the application and an explanation, not later than Friday of next week."
Mr Raphael subsequently indicated that he would "certainly" have the material relevant to the late application for special leave by Tuesday, 10 April 2018.
I raised with Mr Cornish the fact that, in order for me to determine whether these proceedings should be stayed temporarily pending the defendants' last potential avenue of appeal in this matter, the usual practice is that an affidavit from the defendants explaining the delay in seeking special leave as well as proposed grounds and summary of argument would be before the court. I indicated that in order to do justice to both parties the preferable course may be to stand the matter over part heard for two weeks to confirm that the defendants are in fact taking the course proposed by their counsel.
Mr Cornish submitted that the plaintiffs were entitled to summary judgment today given that the orders are currently valid, but accepted that, if the only final adjournment was for two weeks for the defendants to produce evidence that a special leave application is pending, he could understand the Court's position. He sought the costs thrown away from the adjournment, which was consented to by Mr Raphael. Mr Cornish also foreshadowed that on the next occasion he would be seeking indemnity costs for the motion generally.
The proceedings were then adjourned until today in order for the Court to be provided with the relevant documents pertaining to the application for an extension of time to apply for special leave.

Events since 29 March 2018

From the time of the adjournment until yesterday afternoon, no documents had been provided to my chambers on behalf of the defendants.
Yesterday afternoon, Mr Boyd telephoned my associate directly and indicated that Mr Raphael has withdrawn from the matter and he seeks an adjournment of the proceedings today to take his wife to hospital. My associate requested that he put any application in writing, including the plaintiff's lawyers. A lengthy letter was subsequently sent to my associate by Mr Boyd on behalf of both defendants. I shall return to that letter shortly.
After receiving this email from Mr Boyd, my associate sent an email to Mr Boyd, his solicitor on the record, Mr Penhall, and the plaintiffs' solicitor, advising that the notice of motion would proceed today.

12 April 2018

When the matter came on for hearing today, Mr Raphael appeared as a matter of courtesy to formally withdraw from the matter. He indicated that he was unable to obtain instructions from the defendants. He agreed to remain to assist the court on an amicus basis but I indicated to him that there was no need for that to occur.
Mr Cornish of counsel for the plaintiffs indicated that his instructing solicitor had received an email from the solicitors on the record for the defendants indicating that they were unable to obtain instructions from the defendants and they too were no longer instructed in the matter.
There was no appearance by either of the defendants. My associate called both of their names outside court three times. There was no appearance by either of them.
I enquired of Mr Cornish whether there was any reason why I could not have regard to the letter provided to the Court by Mr Boyd yesterday afternoon. He had no objection to that course being taken.
In Mr Boyd's letter to the Court of 11 April 2018, he outlined the history of the litigation and complained of the fact that Mrs Boyd was not joined in the original proceedings. He then set out what has occurred since the Court of Appeal decision, including the recent Equity Division proceedings before Rein J.
Mr Boyd describes that Mrs Boyd now has PTSD as a result of the proceedings and he has no income as he has been off work for over a year providing full time care to her. He explains that he instructed his barrister, Mr Raphael, to "again claim the right ex debito justitiae to have the entire proceedings declared null and void". Mr Boyd notes that Mr Raphael was unsuccessful before Rein J and that Mr Raphael subsequently advised him that "no Supreme Court Judge would void the proceedings".
Mr Boyd goes on to state in his letter that, after the notice of motion before me was adjourned on 29 March 2018 until today, Mr Raphael told Mr Boyd that I had "refused to void the proceedings". He then goes on to state this: "20. Last week my barrister advised that unless I paid $20,000 to apply to have the proceedings heard in the High Court I would lose my house on Thursday (tomorrow). 21. In the meantime, I have determined that my Barrister failed to provide any of the extensive evidence to support the claim of void proceedings. The statement that the Supreme Court Judges refuse to void the proceedings is unjust when it appears they were unable to do so having no evidence before them to justify such an order. 22. Justices Rein and Adams both made decisions in favour of the plaintiff presumably without any knowledge of the supporting evidence Dawn and I hold. 23. My Barrister has repeatedly threatened to drop me this week in an attempt to urge me to pay $20,000 to take the proceedings to the High Court. 24. This morning I requested my Barrister confirm that he had provided the full evidence to Justices Rein and Adams. His response was to drop me based on my alleged failure to pay. 27. Moving forward we urgently and respectfully request a stay of the possession proceedings until we obtain legal representation. 28. We have been severely disadvantaged by the decision of our Barrister, who has formally declared the proceedings to be "void ab initio" and every hearing to be an "error of law" only to drop us within 24 hours of the possessions hearing."
There being no appearance on behalf of the defendants, I indicated to Mr Cornish that I proposed to deal with the matter today. I stood the matter down until midday to deliver these reasons. I note that at midday, when I entered court to deliver these reasons, there was still no appearance by either of the defendants.

Consideration

The two orders sought by the plaintiffs in the notice of motion are closely related. If I was to accept that the defence should be struck out then an order for summary judgment is inevitable. The relevant test to determine whether judgment should be given summarily is well established. It must be demonstrated that there is no tenable defence to the relevant claims: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129; [1964] HCA 69 at [8].
UCPR r 14.28(1) provides that: "(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading: (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or (c) is otherwise an abuse of the process of the court."
UCPR r 13.1(1) provides that, if on application by the plaintiff in relation to the plaintiff's claim for relief or any part of the plaintiff's claim for relief: "(a) there is evidence of the facts on which the claim or part of the claim is based, and (b) there is evidence, given by the plaintiff or by some responsible person, that, in the belief of the person giving the evidence, the defendant has no defence to the claim or part of the claim, or no defence except as to the amount of any damages claimed, the court may give such judgment for the plaintiff, or make such order on the claim or that part of the claim, as the case requires."
There is evidence before me of the facts on which the claim is based as well as evidence from the first plaintiff that, in his belief, the defendant has no defence to the claim. In those circumstances I may give summary judgment if satisfied that there is in fact no defence.
The plaintiffs must establish that any defence the defendants intend to rely upon is "untenable and cannot possibly succeed": Spellson v George (1992) 26 NSWLR 666 at 678-679 per Young AJA, with whom Handley JA and Hope AJA agreed. The relevant principles were summarised by Emmett AJA (with whom Macfarlan and Simpson JJA agreed) in State of New South Wales v Williams (2014) 242 A Crim R 22; [2014] NSWCA 177 at [71], albeit in the context of an application to strike out a defence, as follows: "The requirement for establishing that there is no triable issue is a demanding one and the power to strike out a pleading on the basis that it discloses no reasonable defence, or is an abuse of process, should be exercised only in plain and obvious cases. The power should not be exercised in cases of doubt or difficulty or where the pleading raises a debatable question of law. Once it appears that there is a real issue, whether of fact or law, and that the rights of the parties depend upon it, a court should not dismiss a defence raising such an issue, either on the basis that no reasonable defence is disclosed or as an abuse of process (see Dey v Victorian Railways Commissioners [19 49] HCA 1; 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) [19 64] HCA 69; 11 2 CLR 125 at 129-130; Commonwealth v Griffiths [2007] NSWCA 370; 70 NSWLR 268 at [1 1]- [ 12] and Spencer v Commonwealth [20 10] HCA 28; 241 CLR 118 at 139-140)."
In the joint defence filed on 23 February 2018, it is asserted that the judgments and orders of Robb J and Sackar J in proceedings 2011/91377 were "void" and a "nullity". It is asserted that the orders of Robb J were a nullity by virtue of the fact that Mrs Boyd was not joined in those proceedings, and those of Sackar J were based upon the findings of Robb J and thus also void and a nullity. It is asserted that there was therefore no proper basis for the appointment order made by Sackar J.
To the extent that it is necessary, I note the observations of Sackar J in Thorn v Boyd at [21], extracted above at [46].
During the hearing of this motion before me on 29 March 2018, at which time the defendants were represented by counsel, Mr Raphael conceded that, if the Court of Appeal decision stands, there is no defence.
In circumstances where it was conceded that the defendants currently have no defence, the only basis for adjourning these proceedings was the question of whether a temporary stay should be granted whilst the defendants pursued the avenue of seeking to overturn the decision of the Court of Appeal. I granted a final indulgence to the defendants in order to confirm that such proceedings were in fact being commenced.
There is nothing before me to date to suggest that any application will indeed ever be made.
I have had regard to the letter sent by Mr Boyd yesterday. A number of matters are apparent from it.
First, it is clear that the Boyds have received legal advice that a single judge of this Court is not in a position to overturn an order confirmed by the Court of Appeal. That advice has clearly not been accepted.
Second, the only basis upon which I permitted the two week adjournment on the last occasion was the assurance given to me by counsel that documents were to be filed at the High Court Registry shortly and that funds were available to do so. The letter from Mr Boyd suggests that those funds are not available. It can be inferred from the letter from Mr Boyd that Mr Raphael advised him that, unless an application for an extension of time to seek special leave was filed, it was inevitable that summary judgment would be entered in this matter. Clearly the defendants did not accept that advice either.
Third, the only defence raised in Mr Boyd's letter of 11 April 2018 is to the effect that if further evidence was before this court a single judge decision of this Court would make orders that overturned the order which has been confirmed by the Court of Appeal. Mr Boyd has been advised that this will not occur. He submits that further evidence was not before me on the last occasion nor before Rein J. It has no doubt been explained to him that it is not a matter of additional evidence; there is no basis upon which I could declare the orders confirmed by the Court of Appeal to be a nullity.
Nearly nine months has elapsed since the decision of the Court of Appeal. Mrs Boyd was legally represented by experienced senior counsel in the Court of Appeal. No explanation has been put before the court for the delay. It seems to me that the defendants have had ample time to pursue the question of special leave against the decision of the Court of Appeal and to file a defence disclosing a tenable defence in this matter. That has not been done.
No proper basis for granting the defendants any further indulgence has been put before me.
I am satisfied that the joint defence discloses no defence and should be struck out pursuant to UCPR r 14.28. In circumstances where it was not suggested that any different defence would be filed in the future, I have come to the inevitable conclusion that summary judgment should be entered in this matter. The plaintiffs have been validly appointed as trustees for sale of the property. The property is vested in them to be held upon the statutory trust for sale. The trustees have the power to sell the land and are currently the registered proprietors of the property.
The evidence of the first plaintiff is that the property cannot be sold until the defendants leave the premises. This is to be accepted in circumstances where the defendants do not accept the orders of the court. These proceedings have had a protracted history and it is time for them to come to an end.
I wish to make one final observation. The sustained position of the second defendant is that she had a right to be heard regarding the initial finding of unconscionability against Mr Boyd. In this regard, it is pertinent to note the observations of Leeming JA in Boyd v Thorn at [72] as follows: "…. I am not satisfied that a further hearing is necessary to avoid a substantial wrong or miscarriage. Mrs Boyd to this day is in default of the rules. She has filed no defence. Nor has she has proffered any draft defence. She served no evidence before Sackar J. There is no indication as to the evidence she wishes to adduce, and this Court is left to guess what submissions she wishes to make, at any further rehearing. The potential merits of the case which Mrs Boyd wishes to advance at a rehearing also fall to be assessed against the facts that Mrs Boyd has made a series of further challenges to set aside various orders, all of which have failed, from none of which has any appeal been brought, and the underlying claim is based upon Mr Boyd's use of $200,000 plus interest, which in the scheme of Supreme Court litigation is not a large amount, especially when there have been at least 11 days of hearings before 7 judges to date".
At the conclusion of the hearing of the motion on 29 March 2018, Mr Cornish of counsel foreshadowed an application for indemnity costs.
At the hearing before me today he confirmed that this was the case based on the fact that on the last occasion the defendant's counsel conceded that there was no defence in light of the decision of the Court of Appeal.
Section 98 of the Civil Procedure Act 2005 (NSW) confers a broad discretion in relation to costs. It is appropriate to make an order for costs on an indemnity basis in circumstances where there has been some unreasonable conduct on the part of a party in the conduct of the proceedings. The authorities suggest that one circumstance in which it would be appropriate to order that costs be paid on an indemnity basis would be when a party has maintained proceedings they should have known had no real prospect of success: Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225; [1993] FCA 801.
I have had regard to the fact that the defendants were not in court today to respond to the application for indemnity costs, but I am satisfied that they were aware that the matter would proceed today and it is appropriate to consider the question of a costs order being made on an indemnity basis in these circumstances.
Given that it was conceded in the proceedings before me that there was no defence to these proceedings if the Court of Appeal decision stood in circumstances where no application to seek special leave to the High Court against that decision has ever been made, I am satisfied that it was unreasonable for the defendants to contest these proceedings.
Accordingly, I propose to order that the costs of the motion be paid on an indemnity basis and the costs of the proceedings generally on the ordinary basis.

Orders

I make the following orders: 1. Pursuant to UCPR r 14.28, the joint defence filed and served by the first and second defendant on 25 February 2018 is struck out. 2. Judgment for the plaintiff against the first and second defendants for possession of the property comprised in 10/DP28150 being the land situated at 12 Fletcher Avenue Miranda. 3. That the defendants pay the plaintiffs' costs of the motion on 29 March 2018 and 11 April 2018 on an indemnity basis. 4. That the defendants pay the plaintiff's costs of the proceedings generally on the ordinary basis.

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