Thomas v Stockman & Evans - [2012] NSWCA 444 - NSWCA 2012 case summary — Zoe

NSWNSWCA

Thomas v Stockman & Evans

[2012] NSWCA 444

Court of Appeal (NSW)|2012-12-12|Before: Allsop P, Macfarlan JA, Schmidt J, MacFarlan JA

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At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2012-12-12

Before

Allsop P, Macfarlan JA, Schmidt J, MacFarlan JA

Source

Original judgment source is linked above.

Judgment (2 paragraphs)

[1]

Judgment 1ALLSOP P: I will ask Macfarlan JA to deliver the first judgment. 2MACFARLAN JA: This is an application for leave to appeal against a decision of Schmidt J dated 21 September 2012 giving judgment against the applicant for possession of a property at Bulahdelah. The property was owned by the late Ms Lorraine Hoad who died on 29 July 2006 and left the property equally to her daughters: the applicant and Ms Lorraine Thomas. The applicant moved into the property in 2010. 3Probate was granted on 31 August 2006, and on 2 February 2011 the Court appointed the opponents as statutory trustees for the sale of the property. On 9 November 2011 the opponents commenced the present proceedings for possession. On 22 March and 5 July 2012 the applicant, when represented, consented to orders permitting the opponents to have access to the property for the purposes of sale. As that access was denied, on 25 July 2012 the opponents filed a Notice of Motion seeking an order for possession. After granting adjournments to the applicant on 31 July and 15 August 2012, on 21 September 2012 Schmidt J refused an application for a further adjournment and delivered the judgment that is the subject of the application for leave to appeal. Leave to appeal is required because the judgment was given on an application for summary judgment (see s 101(2)(l) of the Supreme Court Act 1970). 4Earlier this year the applicant filed a handwritten Defence, in the form of a Statutory Declaration, advancing defences to the following effect:

It is not reasonable or necessary for her to be removed from the property to enable it to be marketed or sold.
She has a significant number of medical conditions which affect her mobility and visual perception.
The subject property has modifications which, bearing in mind her impairments, render it suitable for her to live in.
She does not have any family or friends who are prepared to assist her.
She commenced to live in her deceased mother's unoccupied house as a result of the physical limitations of her previous residence.

Schmidt J should have granted her a further adjournment on 21 September 2012. 6The applicant also referred to many of these matters in her oral address to this Court today. 7I have sympathy for the applicant as she finds herself in difficult medical and financial circumstances. However, in my view she has not demonstrated that she had any arguable defence to the claim for possession or that she was denied procedural fairness in relation to the making of the judgment for possession. The opponents are under a duty to sell the property and it is plain that in a practical sense they cannot do so without obtaining possession of it. After payment of expenses, the proceeds of sale will be divided between the applicant and her sister. None of the matters raised by the applicant in her Defence or Summary of Argument constitute an arguable defence to the claim for possession or demonstrate that Schmidt J may have erred in refusing the applicant a further adjournment. The refusal of the adjournment application was a procedural decision within her Honour's discretion and there is no basis for thinking that her Honour's exercise of discretion miscarried. 8The applicant has had over a year since the commencement of proceedings to identify a basis upon which she is entitled to remain in occupation of the property but she has not been able to do so. In my view, the application for leave to appeal should be dismissed with costs. 9ALLSOP P: I agree. I would add this. Distilled from everything that has been said today, a substantive concern that was ventilated was the circumstances of the appointment of the trustees for sale. After going off the bench, having heard Ms Thomas, and upon returning, Ms Thomas sought to file in court documents in the matter of the appointment of the trustees. That is, she in effect wishes to file an application for an extension of time for filing and serving a notice of appeal from the orders made in the Equity Division in February 2011, appointing trustees. 10As Macfarlan JA said, to the eyes, as it were, of the judge on the day, that matter was done by consent. Given that Ms Thomas and her sister were the beneficiaries under the will, one can understand the consent. However, Ms Thomas today, on a number of occasions, made submissions about the conduct of her solicitor on that day. No notice was given of that application either, as far as the Court is aware, to the respondents or to the Court, although Ms Thomas may have spoken to people in the Registry. She indicated that they said to her to bring it up here. The Court refused to entertain the application without any notice. 11If that application is to be filed in the Registry, it will be expedited and the matter will be listed for hearing on the first referral day of the new term. Any affidavit material or submissions by any party in that application are to be filed in the Registry by the beginning of term and the matter will be heard and dealt with on the first referral date in 2013. 12Without the effect of this application, the Court would have been prepared to vary the order of Campbell JA made on 19 November 2012, in which his Honour ordered a stay of the operation of the orders made by the Supreme Court through Schmidt J, until 18 February. That was, in effect, a stay for the execution of the writ. Without this additional application, the Court would, subject to hearing from Mr Williams and the executors, have been prepared to allow an appropriate period, over the holiday period, for Ms Thomas to leave the premises and thus we would have varied it to bring it forward to sometime in mid-January. 13In the light of the application that was sought to be filed, and that will be filed in the Registry, the Court is not minded to amend the stay order that Campbell JA made until 18 February. However, it should be clear that if the application for an extension of time for filing and serving a notice of appeal from the orders appointing the trustees is refused, there would appear to be no circumstances which would legitimately delay any further the entitlement of the trustees to possession of the property. So the parties should be under no misunderstanding that if that application is refused, if there is to be any time for leaving the premises, it will be short from that day. 14Therefore, in addition to the orders proposed by Justice Macfarlan that the application for leave to appeal be dismissed with costs, I make the following orders: