NSW Trustee and Guardian v Colin Edward James Schneider

Judgment ( ex tempore ) 1HIS HONOUR: By summons filed on 4 March 2011, the plaintiff NSW Trustee and Guardian, which is the trustee of certain trusts created under the Will of the late Beatrice May Morgan, claims the following relief:

1. A declaration that the Defendant and any person claiming through him has no present right to occupy the land in property identifier A/XXXXXX known as XX Cypress Street, Evans Head, New South Wales ("the property").
2. A declaration that the Plaintiff is entitled to act on the request of the NSW Trustee & Guardian on behalf of the life tenant of the property, Athol George Morgan, to sell the property and purchase a substitute residence.
3. An order that the Defendant and any other person in occupation of the property give vacant possession to the Plaintiff within 14 days of the making of these orders.
4. An order that the question of damages for trespass and/or unlawful occupation of the property be referred to an Associate Justice of the Court.
5. Such further or other order as the Court thinks fit.
6. Costs. 2The deceased died on 25 May 2001. By her Will made on 3 June 1993, probate of which was granted to George Richard Earl Morgan on 31 August 2001, she gave her Trustees her residence at Cypress Street, Evans Head (in the Will called "My Home") upon certain trusts, namely: 3.(b) To give to my Trustees my residence situate at XX Cypress Street, Evans Head (hereafter called "my home") UPON TRUST as follows: (i) to permit my son ATHOL JAMES MORGAN to reside in my home with the benefit of the use of the furniture and household items (hereinafter called "the contents") in my home at the time of my death for life, he being responsible for maintaining my home and contents having regard to their condition at my death, insuring and keeping insured my home and contents in the name of my Trustee, and the payment of all and any taxes and charges which may from time to time be levied against my home, PROVIDED HOWEVER that should the principle [sic] place of residence of my son not be my home property for a period of six (6) consecutive calendar months THEN I DIRECT my Trustee shall be at liberty to terminate the life tenancy given by this sub-clause. (ii) I DIRECT that at the written request of my son ATHOL JAMES MORGAN, my Trustee shall at his discretion sell my home and purchase another residence in substitution thereof (substituted residence) to which the same provisions as those expressed in sub-clause (i) shall apply. (iii) Any cash balance arising from the sale of my home property and purchase of a substituted residence shall form part of the rest and residue under sub-clause (c) hereof. (iv) I EMPOWER my Trustee as he in his sole discretion shall deem fit, to make use of undistributed moneys from the rest and residue of my estate to make up any deficit between the proceeds of sale of my home and the purchase price of any substituted residence and to pay the costs incurred in the sale and purchase. (v) IN THE EVENT that there are insufficient moneys from the rest and residue of my estate to be applied under sub-clause (iv) THEN I DIRECT that any person or persons who shall contribute to the purchase price and costs incurred referred to in sub-clause (iv) hereof shall be entitled to hold a mortgage over the substituted residence and IN THAT EVENT ONLY I DIRECT that upon termination of the life tenancy the substituted residence shall be sold and the mortgagee repaid. (vi) On the termination of the life tenancy given under sub-clause (i) to give my home or any substituted residence and the contents to my grandson COLIN EDWARD JAMES SCHNEIDER of Bentley absolutely. (c) To give the rest and residue of my estate of whatsoever kind and wheresoever situate to my son ATHOL JAMES MORGAN absolutely. 3By Deed of Appointment of New Trustee dated 15 June 2005, Mr Morgan retired as trustee of the trusts created under clause 3 (b) and (c) of the Will and the Public Trustee, of which the plaintiff is the statutory successor, was appointed in his place. 4As permitted by clause 3(b)(i) of the Will, the deceased's son Athol James Morgan resided in the Cypress Street property for about eight years following the deceased's death. However, in about April 2003, the defendant Colin Edward James Schneider, described in the Will as the deceased's grandson, but in the affidavit evidence as her grandnephew, took up occupation of the property - it would seem concurrently with Athol until April 2009, when Athol left the property in April 2009. 5On 4 July 2003, a guardianship order was made in respect of Athol, appointing the New South Wales Public Guardian, of whom the plaintiff is also the statutory successor, as Athol's guardian. Athol's Public Guardian, is said to have, on her behalf expressed a wish to exercise the power referred to in clause 3(b)(2) of the Will, to have the home sold and another purchased in which Athol can reside as a substituted residence. At this stage, there is no evidence of any formal written request of the type referred to in clause 3(b)(2). Nonetheless, it appears that the plaintiff, in both its capacities, considers that a desirable course in the interests of Athol. 6On 9 July 2009, a solicitor for the Public Trustee forwarded to the property, by ordinary post, a Notice to Vacate addressed to "The Occupants, XX Cypress Street, Evans Head", stating that the property was an asset of the estate and its sale was now required. The notice directed the occupants to vacate within thirty days. It appears that they did not do so. 7On 23 January 2011, Mr Riley, solicitor for the plaintiff, attended at the Cypress Street property with a letter, addressed to the occupants and to Mr Schneider, covering a Notice to Vacate, also addressed to the occupants and to Mr Schneider, requiring that they vacate the property by 9 February 2011. Mr Riley was able to ascertain that there were persons inside the house, but none responded to his attempts to gain attention, even though he knocked on the front door and called out. Before leaving, he placed the notice and letter under the locked front door. 8On 8 March 2011, David Abbey, a process server, attended at the Cypress Street property to attempt to serve the summons. No one responded to his knocking on the front door, but he observed a motor vehicle in the driveway which, while he waited up the street, he noticed pull out of the driveway and leave. He thereupon returned to the premises and went to the rear of the property, observing the rear door to the house to be open, and a small external unattached flat, from which he could hear the noise of people and music emanating. He called out, and a young male adult and a young female adult emerged from the flat. He asked if Colin Schneider was present; the female said "No". Both stated that they were Colin Schneider's children. They asked if he was a solicitor, to which he replied "No". He asked if they would pass the summons on to Colin to which the male replied "Yes". The male responded to a question to the effect that he was over the age of sixteen years, and also stated that his name was Jacky Schneider. 9On 21 March 2011, Mr Abbey attended again at the premises with a copy of the summons, on which the return date had been amended to 29 March 2011. He knocked on the rear door to the house. A young adult female - to the best of his recollection, the same female to whom he had spoken to on 8 March - came to the door. She said that Mr Schneider was home and Mr Abbey heard her call out, "Dad, there is someone here to see you". A few minutes later, an adult male came to the door. In answer to a question posed by Mr Abbey, "Are you Colin Edward James Schneider?", he responded "Yes". And he was then duly served with the summons and supporting affidavit. 10I have recited the foregoing evidence, because it tends to show the state of occupation of the property. 11Under the Will, it is clear enough that Athol James Morgan is entitled to occupy the property during his lifetime, unless the life tenancy be terminated by the Trustee under the proviso to clause 3(b)(i) of the Will. Any right of occupation on the part of Mr Schneider arises under clause 3(b)(vi), only on termination of the life tenancy. The right of the Trustee, on behalf of Athol, to sell the home and purchase a substitute residence also prevails over the rights of Mr Schneider as remainderman - although the remainderman then ultimately succeeds to the substituted residence. On that basis, it is clear enough that the remainderman has no present right to occupy the property as against the trustee. Conversely, the Trustee is entitled to possession of the property, both to give effect to the life tenancy in favour of Athol and, subject to satisfaction of the requisite preconditions, to effect to a sale and then purchase a substitute residence. The Trustee's right to possession is plainly superior to any present claim of the defendant. 12The question then arises whether an order to give vacant possession is an appropriate one, or whether the Court should give judgment for possession at law. At the outset of the proceedings, I raised with counsel whether the order sought in it summons, that the defendant give vacant possession of the property, was the appropriate order, or whether the proceedings were, in substance, proceedings for possession, with a judgment for possession as the appropriate remedy. 13Prior to the commencement of the (NSW) Supreme Court Act 1970 a court exercising equitable jurisdiction in New South Wales would rarely, if ever, grant an injunction where the real remedy sought was possession. Courts of Equity granted injunctions to restrain a threatened or apprehended trespass, but not a past trespass; the Court of Equity did not grant injunctive relief if the trespass were complete [ Moreland v Richardson (1856) 22 Beav 596, at 604]. And when there was a completed act of trespass, the Court of Equity did not restrain its continuation by mandatory injunction [ Goodson v Richardson (1874) LR9 ChApp 221], but left the plaintiffs to their proper legal remedy against the defendant as trespassers. 14In Merrick v Ridge [1897] LR (NSW) 18 (Eq), the plaintiff claimed a declaration that he was entitled to an estate in fee simple in possession for certain land, a declaration as to the rights of the parties in the lands, and an account of rents or profits. The defendants traversed the claim. AH Simpson J said that the suit appeared, in substance, to be "an ejectment action pure and simple", no equity being alleged in the statement of claim and the question turning solely upon the construction of a very inelegantly drawn will. The sole question put forward for decision was whether the plaintiff was or was not entitled to the legal estate in the land in fee simple. His Honour held that the Court of Equity did not have jurisdiction to deprive the defendants of their right to have that question decided, by a jury, at common law. 15In Hawdon v Kahn (1920) 37 WN (NSW) 131, the plaintiff claimed an injunction to restrain trespasses upon land, not alleging any special damage. It appeared from the statement of claim that the defendant was in possession, and that the suit was really brought to try, and obtain, a right to possession. On demurrer, the Court held that the suit was substantially an action in ejectment which the Court, in its equitable jurisdiction, could not entertain. Street CJ in Eq said: An action of ejectment is an action to try the rights to possession; an action of trespass is simply an action to obtain damages for some unauthorised interference with the right to possession, and being a claim sounding in damages, it is, prima facie, not a matter for injunction... The plaintiff says, however, that, in the present case, she is entitled to maintain proceedings in Equity on the ground of the continuity or repetition of the trespass, which it says she has reason to apprehend. If that be so, what she must mean is, that she brings her action on this side of the Court because if she were left to her legal remedy, she would be compelled to bring a multiplicity of actions - she could not obtain complete relief in one action, and so, damages could not afford her an adequate remedy. If one looks, however, at the statement of claim, it is apparent that what the plaintiff has really come here to contest is, not a trespass, but the right to possession. She says... that the defendant has prevented and is still preventing her and her tenant from holding possession. The fact of the matter is that she was in possession of this land and she has now been dispossessed of it. What she now seeks from the Court is assistance to put her back into possession, and in Goodson v. Richardson (L.R. 9 Ch. App. 221, at p.227), James L.J., pointed out that if a bill is, in substance, a bill brought to turn the defendant out of possession and to give the possession to the plaintiff, it "would be strictly and simply an ejectment bill, and such a bill is not according to the practice of this Court." 16These cases were considered by Young J, as his Honour then was, in Beaton v McDivitt (1988) 13 NSWLR 134 at 159. His Honour said: Prior to the Supreme Court Act 1970 , it was almost a sacred rule that no injunction would lie where ejectment was appropriate: Merrick v Ridge (1897) 18 LR (NSW) (Eq) 29 at 30; 13 WN 243; Hawdon v Khan (1920) 37 WN (NSW) 131 at 133. Not even a declaration would be made in lieu of ejectment before the Supreme Court Act , equity fearing that "parties should seek to transfer to this jurisdiction cases which should properly be tried elsewhere", per Myers J in Land v Clyne (1968) 92 WN (NSW) 134 at 136. However, I agree with the comments made by Messrs Meagher Gummow and Lehane in the progressive and modern view that they take in par 2121 at 523-524, of the work cited, that since the Supreme Court Act , this Court is not troubled by these technicalities. Those three decisions accordingly, can be treated as no longer representing the law and practice of this Court. Since the Supreme Court Act , what the Court looks to is what is the most appropriate remedy to vindicate the right established by the successful party. In this case, the successful party has sought injunction rather than ejectment, I can see the reason behind this, and in my view, the injunction should be granted. However, it seems to me that the injunction should be suspended for approximately six weeks because the plaintiff has put some plants on the land and some of his materials on the land with the consent of the defendants, and consequent with the decision of the Court of Appeal in Fitzgerald v Kellion E states Pty Ltd (1977) 2 BPR 9181, the plaintiff would seem to have a licence to go on to the land to remove these at least within a reasonable time, and any denial of that right might constitute a conversion on the part of the defendants. The Court should not cast its injunction in such a way as to prevent this happening, at least for a reasonable period. In my view, the injunction should be suspended until 1 November 1985. 17Two things flow from Young J's analysis. The first, is that the Court looks to what is the most appropriate remedy to vindicate the right established by the successful party. His Honour accepted that, in that case, an injunction was appropriate - in circumstances where the cross-defendant, against whom the order was sought, was no longer in possession of the land, if he had ever been, but had, on the land, some plants and material which he had placed there with the consent of the cross-claimants. The second is that, on the other hand, the cross-claimants were plainly in possession of the land. They sought to exclude a trespasser, rather than to have someone who was in possession ejected and themselves installed in possession. The case was not, in substance, a claim for ejectment. That, I think, is why his Honour accepted that an injunction was a not inappropriate remedy in that case. 18(NSW) Supreme Court Act, s 66(3), provides: The Court may restrain any threatened or apprehended waste or trespass pursuant to this section: (a) whether the person against whom the injunction is sought is or is not in possession under any claim of title or otherwise, or (if out of possession) does or does not claim a right to do the act sought to be restrained under any colour of title, and (b) whether the estate claimed by any party is legal or equitable. 19As outlined in the passage extracted above in Beaton v McDivitt , the authors, Meagher, Gummow and Lehane, as well as Young J's reasoning in Beaton v McDivitt itself, apparently rely on that provision as effecting a change to the law. However, similar provisions have been part of the law of New South Wales since (at least) the (NSW) Equity Act 1901, in which it was s 16(2). As such, it was the subject of consideration in Hawdon v Kahn, to which I have referred above. Nonetheless, I respectfully agree with Young J in Beaton v McDivitt, that nowadays, the essential question is, what is the appropriate remedy. 20If, in the present case, an injunction were the appropriate remedy, then the fact that judgment for possession might also be available would not be a reason for declining an injunction. But it seems to me, for a number of reasons, quite clear that possession and not an injunction is what this case is really about. 21Essentially, the plaintiff says that someone else, namely the defendant, is in possession of the property. The plaintiff is not in possession of the property. The plaintiff desires to obtain possession, essentially so that it can sell under the power given by the Will. This is not a case in which the plaintiff is in possession and the defendant occasionally trespasses on the property: the evidence, so far as it goes, suggests that he occupies and is in possession of it. 22It is instructive to consider how any order would be enforced. A mandatory injunction requiring the defendant to give vacant possession of the property is not a judgment for possession. It would not be enforceable by a writ for possession, which is available only in respect of a judgment for possession [see (NSW) Civil Procedure Act 2005, s104]. A mandatory injunction would be enforceable only by contempt proceedings which, of course, would bring with them additional complexities and requirements that I am not at all sure the plaintiff would really want to assume. Accordingly, it seems to me plain that in this case the appropriate remedy is one for possession. 23Another reason for taking the view as I do, that a proceeding by way of judgment for possession is appropriate, is that proceedings for possession are attended by a number of procedural constraints, deliberately imposed by the rules of Court to protect the position of defendants and occupiers in such proceedings. It would be inappropriate to enable those protections to be circumvented, whether intentionally or otherwise, by framing proceedings as proceedings for an order to vacate rather than for a judgment for possession. 24The next question is whether it is open to the Court, as the matter stands, to give judgment for possession. Under Civil Procedure Act, s 90(1), the Court is obliged to give judgment or make such order as the nature of the case requires. Under (NSW) Uniform Civil Procedure Rules 2005, r 36.1, at any stage of the proceedings the Court may give such judgment or make such order as the nature of the case requires, whether or not a claim for relief extending to that judgment or order is included in any originating process or notice of motion. See also Farrell v Mulroney [1978] 1 NSWLR 221. Accordingly, it is open to the Court to give judgment for possession, notwithstanding that so much is not claimed in express terms in the summons. 25On the other hand, especially where the proceedings are undefended, the Court would not do so if the relief claimed were in substance different from that sought. However, the defendant is on notice that an order that he give vacant possession of the property is sought. In my view, that is sufficient notice of the claim for a judgment the effect of which is to eject him from the property. 26It is now necessary that I consider the various preconditions to ascertain whether they present any obstacle to giving judgment for possession. UCPR r 6.8 requires that if, when proceedings for possession of land are commenced, a person not joined as a defendant is in occupation of the whole or any part of the land, the plaintiff must either state in the originating process that the plaintiff does not seek to disturb that occupier's occupation, or must serve the originating process on the occupier, together with a notice to the effect that the occupier may apply to the court for an order that they be joined as a defendant, and that if the occupier does not apply within ten days subsequent to service they may be evicted pursuant to a judgment entered in their absence. 27It is established that the individual members of the family of a tenant or other occupier are not themselves occupiers within the rule, and notice need not be served on them [ National Commercial Banking Corporation of Australia Ltd v MRM Holdings (1983) 3 BPR 9339]. Likewise, in respect of servants, friends, or visitors of the tenants and occupiers [ Kerr v Sheriff of New South Wales (1996) 9 BPR 16,215]. The evidence in the current case, particularly that of the process server, indicates that the occupants appear to be Colin Schneider and his two children. His children, on the authorities to which I have referred, are not separate occupiers within the meaning of the rule, but members of his family. In those circumstances, it would appear that only the defendant is a relevant occupier. 28UCPR r 36.8 provides that, unless the Court orders otherwise, judgment for possession of land may not be given or entered against a defendant in his or her absence unless the plaintiff files an affidavit stating that, when the originating process was filed or amended, specified persons (other than parties to the proceedings) or no persons (other than parties to the proceedings) were in occupation and as to each person specified - other than ones whose occupation the plaintiff does not seek to disturb - that the originating process had been served on that person or that the person had ceased to be in occupation. The same rule also requires that the affidavit state, if the claim for possession arises by reason of default in the payment of money, the particulars of the default. 29In the circumstances of this case, having regard to the notices to vacate sent and delivered to the property, the service of the summons, and the evidence that indicates that only the defendant and his family are in occupation, I propose to otherwise order for the purposes of UCPR r 36.8, there being no question of monetary default. 30UCPR r 39.1 provides that a writ of execution may not be issued except by leave of the Court, if ( inter alia ) the writ is one for the possession of land. UCPR r 39.3 provides that an applicant for a writ of execution, in the case of a writ for possession of land, must file an affidavit in support of the application, which must identify any persons (other than parties to proceedings) who are in occupation of the whole or any part of the land, stating that that person's occupation is not to be disturbed or that the person is no longer in occupation, or has been served with a notice to occupier pursuant to UCPR r 6.8. If the claim arises from default in the payment of money, the affidavit must give the particulars of any default. The affidavit must additionally state the source of the deponent's knowledge of the matters concerning occupation of the land, and also whether costs are claimed. For the same reasons as apply to r 36.8, I will "otherwise order" for the purpose of this rule also. 31Pursuant to UCPR r 36.8, I order that the plaintiff need not file an affidavit complying with r 36.8. Pursuant to UCPR r 39.3(1), I order that the plaintiff need not file an affidavit complying with r 39.3(2). 32I give judgment for the plaintiff for possession of the land comprised in Folio Identifier A/XXXXXX situate at and known as XX Cypress Street, Evans Head in the State of New South Wales. I grant leave to the plaintiff to issue a writ of possession, such writ not to issue for a period of 28 days from this date. I order that the defendant pay the plaintiff's costs. 33I reserve leave to the plaintiff to apply by motion for an inquiry as to damages, any such application to be made within sixty days.