Westpac Banking Corporation v Thomson by her tutor the NSW Trustee and Guardian

Judgment - Ex tempore

1. HER HONOUR: These are proceedings to enforce a mortgage. The proceedings were commenced by statement of claim filed on 7 March 2012. The proceedings were referred to me as duty judge today to determine an application by the bank for an order for possession of the security property.
2. The registered proprietor of the property is the late Gertrude Marina Thomson. She died on 20 October 2014. Pursuant to s 61 of the Probate and Administration Act 1898 (NSW), her estate is deemed to be vested in the NSW Trustee until probate or administration. In the circumstances, the bank also seeks an order under r 7.10 of the Uniform Civil Procedure Rules 2005 (NSW) that the proceedings continue in the absence of a representative of her estate.
3. As it happens, the Trustee was involved in the proceedings prior to the death of the registered proprietor. Some explanation is required. Default judgment was entered in the proceedings in September 2012 but subsequently set aside. A defence and cross-claim were filed in August 2014. The cross-claim asserts that, as at the date of its filing, the cross-claimant (that is, the late Ms Thomson) was 79 years of age and was suffering from severe Alzheimer's dementia. The cross-claim contended, in short, that the relevant loan documents were entered into by Ms Thomson in circumstances which would give rise to authority or power in the Court to relieve her from paying all or part of the secured debt.
4. Reflecting the contention in the cross-claim that Ms Thomson suffered from severe Alzheimer's dementia, at some point the NSW Trustee and Guardian was appointed as her tutor in the proceedings.
5. The solicitor on the record on the defence and cross-claim, Mr Patterson of Shaw McDonald, was evidently retained by the Trustee in those circumstances. Within months after the filing of the cross-claim, however, Ms Thomson died.
6. In May 2015, Mr Patterson filed a notice of ceasing to act. The proceedings then came before Campbell J who, on 17 June 2015, made orders relevantly including the following: 1. The NSW Trustee and Guardian be substituted as the defendant and cross claimant in these proceedings. 2. The defence filed 25 August 2014 be dismissed unless within 28 days of today a person appearing to have a legitimate interest makes an application to replace the NSW Trustee and Guardian as the defendant in these proceedings. 3. The statement of cross claim filed 25 August 2014 be dismissed unless within 28 days of today a person appearing to have a legitimate interest makes an application to replace the NSW Trustee and Guardian as the defendant in these proceedings.