POSSESSION PROCEEDINGS - Where defendant filed appearance submitting to the orders of the Court - Order for possession granted
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POSSESSION PROCEEDINGS - Where defendant filed appearance submitting to the orders of the Court - Order for possession granted
Judgment (2 paragraphs)
[1]
Judgment - EX TEMPORE (REVISED)
By a statement of claim filed on 26 March 2019 the plaintiff in these proceedings seeks, amongst other things, an order that the defendant give her possession of the land comprised in Certificate of Title Folio Identifier 42/36192, being the land situated at and known as 32 Oceana Street, Narraweena ('the property'). The plaintiff also seeks an order granting her leave to issue a writ of possession forthwith, as well as orders for costs.
Leave has been granted to the defendant to file in Court a submitting appearance dated 14 May 2019, in which the defendant appears and submits to the making of all orders sought and the giving or entry of judgment in respect of all claims made (save as to costs), but in which he reserves his right to apply for a stay of any order(s) made.
The evidentiary material in support of the plaintiff's claim is contained in a Court Book which has been provided to me with the consent of each party. The principal affidavit in support of the relief sought is that of Peter Joseph Norman of 20 March 2019. I draw the following summary of facts from that affidavit.
The plaintiff is an 89 year old lady who suffers from a number of medical complications, including dementia, incontinence and an advanced dual prolapse. The defendant is the plaintiff's grandson, and the son of one of the plaintiff's daughters. On the evidence before me the defendant has resided at the property for what seems to have been the majority of his life, since about the age of two.
On 30 November 2016 the plaintiff's husband, David William Norman, passed away. He left a will which made provision for the property to be passed to the plaintiff, who was previously a joint tenant. As a consequence, the plaintiff is now the sole registered proprietor of the property.
Patricia Norman by her tutor Peter Joseph Norman v Norman [2019] NSWSC 551 | Case summary | Zoe
In late December 2018 a medical practitioner determined that the plaintiff had lost her mental capacity, and had lost the ability to look after herself. Up until that time the plaintiff had been living with the defendant at the property. As a consequence of that medical opinion, a determination was made by those who had been appointed the plaintiff's attorneys (and who included Mr Norman) that it was necessary to transfer the plaintiff into respite care in a facility at Narrabeen. The plaintiff continues to reside at that facility at the present time. Put simply, the decision to transfer the plaintiff to that facility was made because the plaintiff could not look after herself.
There is necessarily a cost attached to the plaintiff's ongoing care. Although that cost was capped for the initial period of her admission into the facility, this was only a temporary arrangement. As long as the plaintiff stays in the facility, she will necessarily have to fund the cost of so doing. She is a person of limited means. Her sole income appears to be a pension. Her sole asset is the property which, but for a reverse mortgage, is unencumbered.
A determination was made in late December 2018 that it would be necessary to sell the property to raise sufficient funds to meet the costs of the plaintiff's ongoing care. Since that time there has been significant correspondence between the solicitors acting for the plaintiff, and those acting for the defendant, in relation to the vacation of the property to enable it to be sold. Within that period the defendant has also commenced separate proceedings seeking that a provision be made to him out of the will of his late grandfather who, as I previously indicated, died in 2016.
On the evidence before me, there is absolutely no basis upon which it is open to the defendant to resist the order for possession which has been sought. Counsel for the defendant did not suggest otherwise. Accordingly I propose in due course to grant that order.
However, there are two other issues remaining. The first is whether or not I should (as the plaintiff seeks) make an order granting the plaintiff leave to issue a writ of possession forthwith, or whether I should (as the defendant seeks) make an order staying the issue of a writ for a period of time. There is also a related question of costs.
I turn firstly to the defendant's application for a stay. Counsel for the defendant submitted to me that in all of the circumstances of this case it was appropriate to grant a stay to allow the defendant, as it were, to get his affairs in order so that he could vacate the property. Counsel submitted that such an order was usual in matters of this nature. He submitted that in recent weeks and months there had been settlement negotiations taking place between the parties which only concluded as recently as about a week ago. Whilst counsel conceded, as I understood it, that the defendant had been first put on notice in December 2018 of the plaintiff's intention to seek possession of the property, he submitted that in the light of the settlement negotiations which had been taking place, a stay of proceedings was appropriate. As I understood it, he suggested that the appropriate period of any stay would be one of six to eight weeks.
In the course of his submissions counsel for the defendant proffered an undertaking by the defendant to the Court that the defendant would take all steps necessary and appropriate, so as to ensure that any marketing and sale of the property was conducted smoothly.
Counsel for the plaintiff opposed a stay of any period. He submitted that the evidence made it clear that the defendant had been on notice, for a considerable period of time, of the plaintiff's intention to seek an order for possession of the property, and that he had also been on notice for the reasons that the plaintiff was wishing to take that course. Counsel submitted that there was a degree of urgency surrounding the sale of the property, for the simple reason that without the sale proceeds, the plaintiff would not be in a position to fund other ongoing care.
It was the position of counsel for the plaintiff that in the light of the defendant's behaviour over the past several months, the Court could not have any confidence whatsoever that the terms of any such undertaking would be adhered to.
In the course of argument counsel for the defendant referred me to the decision of the Court of Appeal in Satchithanantham v National Australia Bank Limited. [1] He directed me, in particular, to the observations of Young JA [2] to the effect that it is usual in cases such as this to stay the execution of any order for possession for a period of at least six to eight weeks. As I observed in the course of argument, the fact that something may be usual does not mean that it is invariable. Whether or not a stay should be granted is a discretionary determination which must be made having regard to the facts of the particular case. In the circumstances of the present case those facts include the following.
On 21 December 2018 those acting for the plaintiff wrote to the defendant and, having canvassed some of the background to which I have referred, said the following:
"We therefore put you on notice that our clients require you to vacate the Narraweena property by 31 January 2019. Further, our clients require you to remove all of your property, including motor vehicles and parts from the Narraweena property by the said date."
Shortly after Christmas of 2018 there was correspondence with the defendant in the course of which he said:
"I least need two months or three months' warning so I can save up...I just feel like I've been fucked over by my family and I was wondering if you could help shed some light on this whole subject because it's ain't no way I'm leaving here in a month and I don't have the money. (B) I don't know where I am going to put my stuff quite frankly, I think it is disgustingly rude. I should at least got some more time from when Nan went into nursing home".
On 3 January 2019 Mr Norman saw the defendant. The defendant said to him:
"We got this letter telling me to move out by the end of January. Legally I have 90 days to do so. I have investigated the costs at RSL and she isn't paying anything. The Government is paying it all."
Mr Norman explained to the defendant that the plaintiff's respite care would cost approximately $130 per day. Later in the course of that conversation the defendant indicated that he would be "contesting" his grandfather's will. The conversation ended with Mr Norman's attorney saying to the defendant:
"You need to leave as soon as possible, the house will be sold."
Mr Norman retained a real estate agent to commence marketing the property. An auction was listed for 14 March 2019. Notwithstanding the demand which had been made of him, the defendant refused to vacate the property. When Mr Norman attended the property on 5 February 2019 for the purposes of overseeing the taking photographs to facilitate a marketing campaign, he said to the defendant:
"Have you made any arrangements?"
The defendant replied:
"I won't be."
Mr Norman said:
"Rhys, you need to move out. Nan needs the money."
The defendant responded:
"I have nowhere to go. I have a lot of stuff so I won't be leaving."
Some days later Mr Norman received a communication from the real estate agent with whom the property had been listed. He was informed that a number of contracts had been issued following a first inspection. However, the agent also told Mr Norman that the marketing of the property was being hindered by the defendant. He said (in relation to the property being opened for inspection):
"There were a number of his friends hanging around the property creating excessive noise, smoking, drug deals. One of the prospective purchasers even saw a bong. We need to sort this out as soon as possible. It doesn't look like he has any plans of leaving."
On 28 February 2019 Mr Norman again attended the property and spoke with the defendant. He said:
"Rhys, I wanted to talk to you about everything that is going on."
The defendant responded:
"Not again, Peter, I don't want to talk to you, I won't be moving out."
Mr Norman said:
"Rhys, we want to help you. We don't hate you, no-one does. We just want what's best for Nan. Here is Nan's bank account and RSL documents and the reverse mortgage account."
The defendant responded:
"Peter, I have nothing. I won't be leaving."
There was then an interjection by an acquaintance of the defendant who was present, following which the defendant said:
"I'm not interested."
Mr Norman responded:
"Well that's it, Rhys, we will be taking action."
Mr Norman and his fellow attorneys then had a meeting and determined that it was necessary to commence the current proceedings.
There is evidence before me that on 30 January 2019 the solicitors for the defendant requested an informal mediation. Precisely what was to be mediated is not at all clear, given that the plaintiff had, on any view of it, a right to possession of the property. Unsurprisingly, Mr Norman and his fellow attorneys determined that the request for mediation should not be entertained. However, in an attempt to resolve the matter, they determined that an offer could be put to the defendant of a payment of $50,000 (based on his likely gift under the Will of the plaintiff) in an effort to resolve the proceedings.
On the evidence before me an offer to that effect was made on 22 February 2019. When no response was received the defendant was contacted by Mr Norman. The defendant asserted that he was unaware of the offer, and said he would contact his solicitor.
A response was finally forthcoming from the defendant's solicitors on 5 March 2019. The defendant's solicitors maintained that they were not in a position to respond to the offer in the absence of certain particulars. It seems to me, on the face of it, that at least some of those particulars were completely extraneous to any issue about which those solicitors might have had to advise the defendant. In any event a second offer of settlement was made on 5 March 2019. There was no response to that second offer. I have been informed by counsel for the defendant from the bar table today that the settlement negotiations have been ongoing until recently. The precise terms of those negotiations are not clear to me on the evidence.
In G-E Personal Finance Pty Ltd v Smith, [3] Johnson J made a number of observations regarding the principles surrounding the grant of an order staying the issue of a writ of possession. Although such observations were made in the context of possession proceedings brought by a mortgagee, they are nevertheless applicable to the circumstances of the present case.
His Honour observed [4] that having been served with originating process, a defendant is on general notice as to the consequences which may flow as a result of the proceedings. His Honour also observed [5] that if a defendant takes no action until the execution of a writ of possession is imminent, a legitimate question arises as to why no action was taken earlier, either by way of negotiations with the plaintiff or by making an application to the Court. His Honour emphasised [6] that a defendant who seeks a stay should be in a position to explain to the Court his or her action or inactions prior to the making of the application.
His Honour went on to observe [7] that ordinarily, if a defendant is not in a position to demonstrate a reasonable foundation for a stay, then there could be no reasonable expectation of an extended stay on hardship grounds only. His Honour also emphasised [8] that it is necessary to consider all the circumstances of the particular case to determine whether or not a stay should be granted and if so, on what terms.
His Honour concluded [9] by saying the following:
"I have made the observations in this judgment in order to emphasise the defendants can have no reasonable expectation that a stay of a Writ of Possession will be granted upon request in every case. The nature of the proceedings, and the stage at which the proceedings have reached by the time of such an application, are important factors which the Court must take into account and which a Defendant must overcome on a stay application. A Defendant must also satisfy the Court that a sound and proper basis exist for the grant of a stay".
Bearing those matters in mind, it is relevant to begin by noting that the defendant has been on notice of the plaintiff's position, and specifically her intention to seek an order for possession of the property, since December 2018. That is approximately five months ago. The evidence establishes that within that period of time, on the occasions on which Mr Norman attempted to reason with him, the defendant displayed what could only be described as an uncaring and belligerent attitude to the position that the plaintiff faced. That attitude was compounded by his behaviour at the time that the property was being marketed, which resulted in the marketing campaign being brought to a halt.
On the evidence before me the plaintiff's position is properly described as dire. Her sole source of income is an aged pension of a little over $900 per fortnight. That is insufficient to cover the cost of her ongoing care. If a stay were granted, that would mean that the property could not effectively be marketed until the conclusion of that period. Whilst I have noted the defendant's undertaking to co-operate with any marketing campaign, I accept the submission of counsel for the plaintiff that in light of his previous behaviour and expressed attitude, I could have absolutely no confidence whatsoever that such an undertaking would be met.
I have taken into account the fact that settlement discussions have been taking place. However, in my view that does not provide a proper basis for a stay. Whilst it is clear that Mr Norman and his fellow attorneys were endeavouring to try and resolve the matter, it is equally clear that there was no suggestion, at any stage, that these proceedings would be discontinued. The defendant must have understood that if no settlement could be reached, the proceedings would continue and that he would, in that event, have an order for possession made against him. There is some force in the submission that the plaintiff should not be penalised by virtue of the fact that genuine attempts were made to resolve the proceedings.
Against that background I am not satisfied that a stay should be granted for any period of time. An order should be made granting the plaintiff leave to issue a writ of possession forthwith.
Counsel for the plaintiff sought costs and submitted that they should follow the event. Whilst it was not disputed that costs should follow the event, counsel for the defendant submitted that any such order should be limited, and should limit the defendant's liability for costs to those incurred by the plaintiff up to about mid-April of this year. The basis of that application, as I understood it, was that there were said to be certain procedural defects in the commencement of the proceedings, which the plaintiff was required to remedy before the matter could proceed, and of which the plaintiff became aware after they had been drawn to his attention by counsel for the defendant when the proceedings were previously before Campbell J.
It is not necessary for me to resolve the nature and extent of any of those procedural issues. The question of costs is necessarily a discretionary one. The general rule, as set out in R 42.1 OF the Uniform Civil Procedure Rules 2005 (NSW), is that costs should follow the event. Whilst it is true that the plaintiff could have sought default judgment prior to today, and whilst it is also true that this hearing has been expedited, it is also the case that the hearing today would have been necessary in order for the defendant's application for a stay to be heard and determined. The fact of the matter is that the plaintiff has succeeded in firstly, obtaining the relief which was sought in the statement of claim, and secondly, in resisting the application for a stay. It seems to me that in those circumstances there should be no departure from the usual order.
For those reasons I make the following orders:
1. The defendant is to give the plaintiff possession of the land comprised in the certificate of title folio identifier 42/36192, being the land situated at and known as 32 Oceana Street, Narraweena, in the State of New South Wales.
2. The plaintiff is granted leave to issue a writ of possession forthwith.
3. The defendant is to pay the plaintiff's costs of the proceedings as agreed or assessed.
4. I transfer the proceedings brought by the defendant against the executor of the estate of the late David William Norman, being proceedings 2019/00094287, to the Family Provision List of Hallen J in the Equity Division of this Court.
5. The notice of motion filed by the defendant in the proceedings in (4) above is to be returnable before Hallen J on 31 May 2019.
[2]
Endnotes
[2009 NSWCA 268
At [67].
[2006] NSWSC 8889
At [12].
At [12].
At [12].
At [22].
At [29].
At [30].
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Decision last updated: 16 May 2019