Campbell v Illawarra Golf Club Pty Limited

Supreme Court of NSW|2013-12-10|Before: Bellew J, Garling J

Judgment 1By a notice of motion filed on 2 December 2013 Christopher Brian Birch ("the applicant") has sought (inter alia) the following orders: (i)an order that the writ of possession issued on 30 September 2013 in relation to the property known as Illawarra Golf Club, located at RMB 87, Princes Highway, Darkes Forest New South Wales 2508, be set aside in so far as it relates to the registered owners Christopher Brian Birch and Sandra Lee Tarrant; (ii)in the alternative, an order that the writ of possession issued on 30 September 2013 in relation to the property known as Illawarra Golf Club located at RMB 87 Princes Highway Darkes Forest New South Wales 2508 be stayed pending determination of proceedings 2013/282086; (iii)an order that the first and second respondents not interfere with the lawful occupation of the property known as Illawarra Gold Club located at RMB 87 Princes Highway Darkes Forest New South Wales 2508. 2The motion was supported by an affidavit of the applicant sworn on 2 December 2013. The relief sought was opposed by the respondents. The respondents read the affidavit of Alexander Young Karolczak of 5 November 2013, the exhibits to which were marked exhibits 3 and 4 in the proceedings. The respondents also tendered a copy of a statement of claim filed by the applicant commencing proceedings in this court against (inter alia) the respondents (exhibit 1) along with a copy of a notice of motion filed by the respondents in that matter seeking summary judgment (exhibit 2). I have referred to those documents, and those proceedings, in further detail below.

THE EVIDENCE ON THE PRESENT APPLICATION 21I have noted (at [2] above) the affidavit and documentary evidence which is before me on the present application. The applicant was cross-examined, in the course of which an issue emerged as to whether or not he presently occupies the property. 22On 1 January 2012 the applicant verified Hawkins' defence in the proceedings. In doing so, he gave his address as 210 Woorarra Road Elanora Heights (at p.220 of exhibit 3). 23Further the applicant's evidence in the hearing before Schmidt J on 1 August 2013 commenced with the following (at p. 508 of exhibit 4): "Q: Will you please tell the court your full name. A: My full name is Christopher Brian Birch and I reside at 210 Woorarra Road, Elanora Heights." 24Moreover, in a number of affidavits sworn by the applicant and filed in the proceedings (including an affidavit sworn on 4 February 2013 (at p. 241 of exhibit 3) and an affidavit sworn on 12 July 2012 (at p. 303 of the same exhibit) the applicant similarly stated that his address was 210 Woorarra Road, Elanora Heights. 25Against this background, in his affidavit of 2 December 2013 in support of the present motion, the applicant gave his address as "RMB 87 Princes Highway, Darkes Forest in the State of New South Wales 2508", that being the address of the property. 26The issue of whether or not the applicant currently lives at the property was canvassed in the course of cross-examination in the hearing before me. He was asked (commencing at T8 L12): "Q. Now, Mr Birch, you swore an affidavit in these proceedings on 4 February 2013. Do you remember swearing that affidavit? A. Not off the top of my head. Q. It is in that same volume at tab 21? A. Yes. Q. And in that affidavit you gave your address as 210 Woorarra Road, Elanora? A. Yes. Q. Is that the truth at the time? A. Yes, it is truth at the time, 87 Madison Plain as well. Q. I am only asking you one question at a time Mr Birch. Another affidavit of 12 June 2013, 12 July, tab 25. An again in that affidavit you gave your address at 210 Woorarra Road, Elanora, do you agree with that? A. Yes. Q. That was the truth at the time? A. That is the address that I give as my place of business, place at home, because I know there will always be a person there to receive the mail, rather than at 87 Princes Highway, Darkes Forest. It is a large property, the mail box is nearly a kilometre away from the road. Q. During the course of the hearing before Schmidt J, you gave some crossexamination? A. I recall you asking me some questions. Q. Page 197 of the transcript, line 28, you were asked what your full name was, you said, "My full name is Christopher Robert Birch, I reside at 1 Woorarra Road, Elanora Heights" remember? A. I reside at both places. Q. You didn't say when you were crossexamined you resided at 210 Woorarra Road, Elanora Heights? HIS HONOUR Q. Do you agree with the fact that you said that? A. If it is the record, I must have said it, but it is not what I would have meant so far as being my main address." 27In addition, it is relevant that in the course of his evidence, the applicant: (i)said (commencing at T22 L40) that he had not been served with the statement of claim commencing the proceedings; (ii)agreed (commencing at T22 L50) that having given evidence in the proceedings, he necessarily knew of them; (iii)agreed (at T11 L10) that he had not asserted a right to possession of the property in the proceedings; and (iv)said (commencing at T23 L45) that Hawkins had informed him of the outcome of the proceedings "probably a couple of weeks" after judgment was delivered (which, given that judgment was delivered on 20 September 2013, would mean that the applicant became aware of the outcome in or about late September or early October 2013).

The submissions of the applicant 28Counsel for the applicant firstly pointed to the fact that the applicant was not a party to the proceedings. It was submitted that as a consequence, the applicant had not been in a position to raise the matters that he now seeks to raise in the proceedings he has commenced against NAB and the respondents. 29Secondly, counsel for the applicant relied on the provisions of rule 6.8 of the Uniform Civil Procedure Rules. He pointed out that no statement of claim (or other notice) was ever served on the applicant and submitted that this failure was fatal to the respondents' opposition to the orders sought. Equally fatal, counsel submitted, was the failure to serve notices pursuant to s. 57(2)(b) of the Real Property Act 1900 ("RPA") 30Thirdly, counsel submitted that the provisions of the Deed contemplated the commencement of proceedings for an order for possession against both the applicant and Tarrant. Given that no such proceedings had ever been brought, he submitted that it was not open for the respondents to rely on those provisions.

The submissions of the respondents 31Counsel for the respondents submitted that the Deed regulated the position between the applicant and the respondents. He submitted that the effect of that deed was that the applicant and Tarrant had agreed not to oppose a judgment for possession. 32Counsel further submitted that in circumstances where the proceedings brought by the respondents sought an order for possession of the property, there had been no requirement to serve any notice pursuant to s. 57(2)(b) of the RPA. In terms of rule 6.8, counsel submitted that the rule only obliged the respondents to serve notice on the applicant if he was in occupation at the time that the proceedings were commenced. Counsel described the evidence in this regard as "confusing" but, as I understood it, he invited me to conclude that the applicant had not been in occupation of the property for some time, and was not in occupation at the present time. Counsel further submitted that in any event, the purpose of r 6.8 was to ensure that persons who had a right to defend an action for possession were made aware of that action and given an opportunity to intervene in the proceedings. It was submitted that in the present case the applicant was clearly aware of the proceedings and had the opportunity to intervene if he wished to do so. 33Counsel for the respondents also relied upon the delay in bringing the present application. He submitted that on the evidence, the applicant must have known as early as January 2012 (when he verified Hawkins' defence) that the respondents were taking proceedings for possession, yet it was not until September 2013 that he commenced any proceedings against them. Counsel also relied on the fact that the applicant did not commence those proceedings until a considerable time after the indication had been given to Garling J that this was what he proposed to do. Counsel further submitted that even on the most cursory examination of the plaintiff's statement of claim, issues arose as to his prospects of success in those proceedings. In this regard, counsel also relied upon the fact that the respondents had brought a motion seeking summary judgment. 34Finally, counsel submitted that in circumstances where there was no evidence of an imminent sale of the property, and in circumstances where the evidence did not support a finding that the applicant was presently in occupation, any prejudice which might arise if the orders sought were refused was insignificant.

CONSIDERATION 35The court's power to order a stay of a writ of possession is discretionary. Bearing in mind the variety of differing situations in which the court may be called upon to exercise that discretion, there can be no prescription of the circumstances in which it ought do so (see GE Personal Finance Pty Limited v Smith [2006] NSWSC 889 at [9]; National Australia Bank Limited v Damelian [2013] NSWSC 792 at [20]). 36There is, in my view, some force in the submission advanced by counsel for the applicant regarding the provisions of the Deed. The various references in clause 8(b) to the financier "having judgment against (the applicant and Tarrant)", the applicant "consenting to" such judgment and the applicant not taking "steps to defend" such judgment all contemplate the commencement of proceedings against the applicant and Tarrant for possession. No such proceedings have been commenced against the applicant. However notwithstanding that, there are a number of other factors which tend against the exercise of the court's discretion in the applicant's favour. 37Firstly, I am not satisfied that the applicant presently lives at the property. I found his evidence in relation to this issue highly unsatisfactory. The applicant has repeatedly and unequivocally stated to this court that he resides at an address in Elanora Heights. On the evidence which is before me, the first occasion on which the asserted that he resided at the property was when he swore his affidavit of 2 December 2013 in support of the present motion. In the course of giving evidence before me, and when asked whether he had told Schmidt J in August 2013 that he resided at an address in Elanora Heights, the applicant replied (at T9 L2): "If it is the record, I must have said it but it is not what I would have meant so far as being my main address." 38There is nothing in the evidence before me which suggests that the applicant has previously asserted that he has a "main address". The only address he has ever given in connection with these proceedings has been the address in Elanora Heights. The applicant's answer in [37] above suggested that his "main address" is that of the property. I regard that as an answer of convenience. I am not satisfied that he lives at the property. I am satisfied that when he stated in his affidavit of 2 December 2013 that he does so, he was misleading the court in an attempt to lend weight to the present application. 39A further factor tending against the grant of a stay is that of delay. In this regard the evidence establishes the following: (i)the applicant was aware of the proceedings at least as far back as January 2012 when he verified Hawkins' defence. Indeed given the background to the proceedings, I consider it highly probable that the applicant knew about the proceedings even before that time; (ii)in February of 2013, the applicant informed Garling J, through Hawkins, that the preparation of a statement of claim against the NAB was "well advanced" and likely to be filed by March 2013; (iii)it was not until September 2013, some 7 months later, that the statement of claim was filed; (iv)the applicant knew of the judgment of Schmidt J, in which her Honour made an order for possession, by late September or early October 2013; (v)the present motion was not filed until 2 December 2013. 40A person who seeks orders of the kind sought by the applicant should be in a position to explain to the court his or her inaction prior to the making of the application (see GE Personal Finance (supra) at [12]). The applicant has completely failed to provide any such explanation for the delays to which I have referred. 41Further, I do not accept the submissions of counsel for the applicant in relation to the operation of r. 6.8. That rule is in the following terms: 6.8 Originating process for recovery of land to be served on occupier (1) If, when proceedings for possession of land are commenced, a person (the "occupier") not joined as a defendant is in occupation of the whole or any part of the land, the plaintiff: (a) must state in the originating process that the plaintiff does not seek to disturb the occupier's occupation of the land, or (b) must serve the originating process on the occupier together with a notice to the effect that: (i) the occupier may apply to the court for an order that the occupier be added as a defendant, and (ii) if the occupier does not so apply within 10 days after service, the occupier may be evicted under a judgment entered in the occupier's absence. (2) For the purposes of subrule (1), documents may be served on the occupier personally or by leaving the documents on the land concerned addressed to the occupier by name or addressed simply "to the occupier". (3) If originating process is amended by the addition of a claim for possession of land, the time at which proceedings for possession of that land are commenced is taken, for the purposes of subrule (1), to be the time at which the amendment is made. 42In Yeshiva Properties No. 1 Pty Limited and ors v Lubavitch Mazal Pty Limited and anor (No. 2) [2003] NSWSC 752 Gzell J considered the provisions of Pt 7 r 8(1) of the Supreme Court Rules which was the predecessor to r. 6.8 and which, although expressed in different terms, was to a similar effect. His Honour said (at [12]): "The purpose of the rule is to provide occupiers of land the subject of proceedings for a judgment for possession with the opportunity to assert any rights they may have. In this case, the commonality of directors between the plaintiffs in the proceedings before Young CJ in Eq and the applicants before me meant that the applicants were well aware of the proceedings and, if they had wished to assert rights stemming from their occupancy, they had the opportunity to be joined in those proceedings" 43His Honour then said (at [14]): "In these circumstances the protection afforded to occupiers by the Supreme Court Rules 1970, Pt 7 r 8 was superfluous. The applicants were already aware of the nature of the proceedings and the impact that a successful judgment on the cross claim would have". 44His Honour went on to observe (at [15]) that Pt 1 r 12 of the Supreme Court Rules allowed the court to dispense with compliance with any of the requirements of the rules, either before or after the occasion for such compliance arose. He concluded (at [16]) that in circumstances where the applicants in that case were aware of the proceedings but took no steps to assert any rights arising from their occupation of the property in question, it was appropriate to invoke the power conferred by Pt 1 r 12 and dispense with compliance with Pt 7 r 8. 45The power previously conferred upon the court by Pt 1 r 12 of the Supreme Court Rules is now contained in s. 14 of the Civil Procedure Act 2005 which is in the following terms: Court may dispense with rules in particular cases In relation to particular civil proceedings, the court may, by order, dispense with any requirement of rules of court if satisfied that it is appropriate to do so in the circumstances. 46The various observations of Gzell J are apt in the present case. There is no evidence enables me to determine whether the applicant was an occupier of the property within the meaning of r. 6.8 when the proceedings were commenced. However even assuming that he was, an order dispensing with the requirements of r. 6.8 is in my view appropriate. The underlying purpose of the rule, as explained by Gzell J, is to provide an occupier with an opportunity to assert any right(s) he or she may have in possession proceedings. The applicant knew about the proceedings long ago. He also knew of their progress and of the potential impact of a judgment in favour of the present respondents. He agreed in evidence before me that he did not assert any right to possession in the proceedings. In these circumstances, the protection afforded by r. 6.8 is, to adopt the terminology of Gzell J, superfluous. 47The fact that the plaintiff has now commenced proceedings against the respondents and the NAB does not persuade me to make the orders sought. Quite apart from his delay in doing so, the statement of claim itself evidences nothing more than the fact that proceedings have been commenced. It says nothing about the strength of the case that he brings (see for example (see In re Foster; Ex parte Basan (1885) 2 Morr 29 at 33 - 34 per Brett MR; Re Verma; Ex parte Deputy Commissioner of Taxation (1985) 4 FCR 181 at 187). The same observations can be made about the notice of motion filed by the present respondents seeking an order for summary judgment in those proceedings. The strength or otherwise of that application will be a matter for the judge who hears and determines it. If it is not successful, the strength or otherwise of the applicant's case will be a matter for the trial judge. I am not in a position to make any determination of those matters. 48Further in my view, s. 57(2)(b) of the RPA has no application in the present circumstances. Section 57(2)(b) of the Act is in the following terms: 57 Procedure on default ... (2) A registered mortgagee, chargee or covenant chargee may, subject to this Act, exercise the powers conferred by section 58 if: (a) in the case of a mortgage or charge, default has been made in the observance of any covenant, agreement or condition expressed or implied in the mortgage or charge or in the payment, in accordance with the terms of the mortgage or charge, of the principal, interest, annuity, rent-charge or other money the payment of which is secured by the mortgage or charge or of any part of that principal, interest, annuity, rent-charge or other money, (a1) in the case of a covenant charge, default has been made in: (i) the payment, in accordance with the terms of the judgment to which the covenant charge relates, of the principal, interest or other money the payment of which is secured by the covenant charge, or (ii) the payment, in accordance with the terms of that judgment, of any part of that principal, interest or other money, (b) where: (i) the default relates to that payment, or (ii) in the case of a mortgage, the default does not relate to that payment and notice or lapse of time has not been dispensed with under section 58A, a written notice that complies with subsection (3) has been served on the mortgagor, charger or covenant charger in the manner authorised by section 170 of the Conveyancing Act 1919 , (b1) where a notice is required to be served under paragraph (b), a copy of that notice has been served (in the manner authorised by section 170 of the Conveyancing Act 1919) on: (i) each mortgagee, chargee or covenant chargee (if any) of the land mortgaged or charged under a registered mortgage, charge or covenant charge which has less priority than that of the person intending to exercise the power of sale, and (ii) each caveator (if any) who claims as an unregistered mortgagee or chargee to be entitled to an estate or interest in the land mortgaged or charged, and ..." 49Section 58 confers a power of sale upon the mortgagee or chargee, upon compliance with s. 57(2)(b). However, there is no evidence before me that any power of sale is sought to be exercised at the present time. The only relevant order made by Schmidt J was an order for possession of the property. 50Finally, in circumstances where there is no evidence that the property is likely to be sold in the near future, I accept the submission of counsel for the respondents that the only prejudice suffered by the applicant is that he would not be entitled to occupation in the intervening period. Given the conclusions I have reached in [38] above, any such prejudice is insignificant.

ORDERS 51For these reasons I make the following orders: (i)The requirements of r. 6.8 of the Uniform Civil Procedure Rules are dispensed with pursuant to the provisions of s. 14 of the Civil Procedure Act 2005. (ii)The order made on 10 December 2013 granting a temporary stay of the execution of the writ of possession in relation to the land situated at and known as 87 Princes Highway, Maddens Plains, New South Wales, is vacated. (iii)The notice of motion is dismissed. (iv)The applicant is to pay the respondents' costs of the notice of motion, as agreed or assessed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 April 2014

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