Secure Funding Pty Ltd v Mears

[2023] NSWSC 217

Supreme Court

New South Wales

Medium Neutral Citation:

Secure Funding Pty Ltd v Mears [2023] NSWSC 217

Hearing dates:

15 March 2023

Date of orders:

15 March 2023

Decision date:

15 March 2023

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Leave to plaintiff to file Notice of Motion dated 6 December 2022 nunc pro tunc.

2. Pursuant to Rules 6.24, 6.29 and 6.32(1)(d) of the Uniform Civil Procedure Rules 2005, the NSW Trustee & Guardian be substituted for Gregory Ross Mears as first defendant in this proceeding.

3. Pursuant to section 64 of Civil Procedure Act 2005, the plaintiff be given leave to amend the Statement of Claim filed in this proceeding on 11 July 2022 in accordance with the Amended Statement of Claim annexed to the Affidavit of David Benjamin Goldman.

4. Amended Statement of Claim to be served on NSW Trustee and Guardian and the second defendant by 24 March 2023.

5. Plaintiff to serve Amended Statement of Claim together with a letter advising that the matter is listed before Davies J at 2:30pm on 31 March 2023 with the intention that final orders for possession will be made on that day.

Catchwords:

CIVIL PROCEDURE – parties – possession proceedings – where one defendant had died before proceedings commenced – where plaintiff became aware after proceedings commenced – where no administration of the deceased’s estate applied for – NSW Trustee and Guardian substituted for deceased defendant

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

GEL Custodians Pty Limited v The Estate of the late Geoffrey Francis Wells [2013] NSWSC 973

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Secure Funding Pty Ltd (Plaintiff)
Gregory Ross Mears (First Defendant)
Jennifer Anne Mears (Second Defendant)

Representation:

Counsel:
O Newman (Plaintiff)
No appearances (Defendants)

Solicitors:
Norton Rose Fulbright (Plaintiff)
Unrepresented (Defendants)

File Number(s):

2022/202476

Publication restriction:

Nil

Judgment

1. The plaintiff in the first instance seeks leave pursuant to the Possession List Practice Note to file a notice of motion. That notice of motion seeks to substitute for the first defendant Gregory Ross Mears the NSW Trustee and Guardian on the basis that Mr Mears had died before the proceedings had commenced.

2. The proceedings seek possession of land in Church Street, Glen Innes. A statement of claim was filed on 11 July 2022 naming Mr Mears as the first defendant and Jennifer Anne Mears as the second defendant. Those two persons are the registered proprietors of the land, and it is alleged that they provided a mortgage to the plaintiff on 3 May 2005 to secure a loan agreement entered into with the plaintiff on 17 March 2008.

3. When the second defendant was served with the statement of claim the process server had a conversation with her, where she confirmed that Mr Mears had died. The process server asked if he could obtain a copy of the death certificate but the second defendant replied that she was not able to locate it at that time. There is no reason to think, however, that it is not the case that the first defendant has died and did so apparently before the commencement of these proceedings. The plaintiff was unaware of his death prior to instituting the proceedings.

4. Searches have been conducted on behalf of the plaintiff to ascertain if probate or letters of administration have been granted for the estate of Mr Mears. Those searches indicate that no application for administration has been made.

5. Rule 6.24 Uniform Civil Procedure Rules2005 (NSW) enables the joinder of a party that is necessary for the determination of all matters in dispute. Rule 6.29 enables the Court to order the removal of the party who has ceased to be a proper or necessary party; and r 6.32 enables the substitution of one party for another party or a former party.

6. In GEL Custodians Pty Limited v The Estate of the late Geoffrey Francis Wells [2013] NSWSC 973 I held at [63] that:

“...where a claim for possession is made in relation to a person who has died and where no grant of probate or administration has made in their estate the proper defendant to the proceedings is the NSW Trustee and Guardian...”.

7. As I discussed in that case, the authorities make clear that the NSW Trustee and Guardian has no duties or responsibilities as a result of being the appropriate defendant in the circumstances. The present notice of motion and supporting material have been served on the NSW Trustee and Guardian and in accordance with those authorities the Trustee and Guardian has indicated that it does not intend to take any steps in the proceedings.

8. In the circumstances the plaintiff should be given leave to file the present notice of motion. Orders should be made pursuant to rules 6.24, 6.29 and 6.32 removing Gregory Ross Mears as the first defendant and substituting there for the NSW Trustee and Guardian.

9. The plaintiff seeks leave in the notice of motion also to amend the statement of claim in accordance with the form annexed to the affidavit of David Benjamin Goldman sworn 1 December 2022, to give effect to the change of defendant. It is appropriate that that order should be made and that the amended statement of claim should be served on the NSW Trustee and Guardian and the existing second defendant, Jennifer Anne Mears.

10. The initial statement of claim was served on the second defendant on 27 July 2022. The second defendant has neither appeared nor filed any defence to the claim made by the plaintiff. A notice to occupier was also served at the same time, and no person has applied to be joined as a defendant by reason of their occupation at the premises.

11. In those circumstances, after the amended statement of claim is served on the second defendant, the proceedings will be relisted before me for the making a final orders in the proceedings. I also made clear in GEL Custodians it will not be possible for a plaintiff to seek a monetary judgment against the NSW Trustee and Guardian. All that can be sought is a judgment for possession on the basis that that is a remedy in rem.

12. Accordingly, I make the following orders:

1. Leave to plaintiff to file Notice of Motion dated 6 December 2022 nunc pro tunc.

2. Pursuant to Rules 6.24, 6.29 and 6.32(1)(d) of the Uniform Civil Procedure Rules 2005 (NSW), the NSW Trustee & Guardian be substituted for Gregory Ross Mears as first defendant in this proceeding.

3. Pursuant to section 64 of Civil Procedure Act 2005 (NSW) the plaintiff be given leave to amend the Statement of Claim filed in this proceeding on 11 July 2022 in accordance with the Amended Statement of Claim annexed to the Affidavit of David Benjamin Goldman.

4. Amended Statement of Claim to be served on NSW Trustee and Guardian and the second defendant by 24 March 2023.

5. Plaintiff to serve Amended Statement of Claim together with a letter advising that the matter is listed before Davies J at 2:30pm on 31 March 2023 with the intention that final orders for possession will be made on that day.

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