Hall by her tutor NSW Trustee & Guardian v Hall [2021] NSWSC 862

Supreme Court New South Wales

Medium Neutral Citation: Hall by her tutor NSW Trustee & Guardian v Hall [2021] NSWSC 862 Hearing dates: 16 July 2021 Date of orders: 16 July 2021 Decision date: 16 July 2021 Jurisdiction: Common Law Before: Davies J Decision: 1. Order that settlement of the claim by the plaintiff and the cross-claim by the defendant be approved pursuant to s 76(4) of the Civil Procedure Act 2005 (NSW). 2. Order that the Defendant vacate the property known as 17 The Citadel, Manyana NSW ('the property') by 1 September 2021. 3. Judgment for the plaintiff for possession of the land comprised in Folio Identifier 573/545798 being the property situated at and known as 17 The Citadel Manyana NSW 2539. 4. Grant leave for a writ of possession for the property, 17 The Citadel, Manyana NSW to issue forthwith. 5. Order that paragraphs 3 and 4 herein be stayed until 2 September 2021. 6. Order that the sum of $100,000.00 be paid to the Defendant from the proceeds of sale of 17 The Citadel, Manyana NSW, within fourteen (14) days of the settlement of the sale. 7. Order that for every week or part thereof in which the Defendant is in occupation of the property after 1 September 2020, he is to pay an occupation fee of $200.00 per week; such amount to be deducted from the lump sum referred to in paragraph 6. 8. Order the Plaintiff to keep the Defendant informed about the sale of the property, including when and by whom the home is listed, the proposed auction date, any exchange of contracts and the proposed settlement date. 9. Order that on and from the date 1 month and 1 day after the making of Orders, the Defendant will allow the Plaintiff, or any real estate agent engaged by the Plaintiff, access to the property for the purpose of marketing the property for sale. The Plaintiff will provide the Defendant with 48 hours' notice for any access. The Plaintiff reserves Saturday for access to the property between 9:00am - 4:00pm. 10. Order that the Amended Statement of Claim otherwise dismissed. 11. Order that the Cross-Claim is otherwise dismissed. 12. Order that future listing dates be vacated. Catchwords: JUDGMENTS AND ORDERS - amending, varying and setting aside - consent orders - set aside - parties attended court-annexed mediation – both parties legally represented - parties signed consent orders requiring court approval - defendant alleged he was pressured to sign orders - where nothing in affidavit of defendant evidencing undue pressure to settle proceedings - no basis for setting aside agreement reached at mediation REAL PROPERTY - possession of land - defendant's mother owner of premises with NSW Trustee & Guardian as her financial managers - where plaintiff the registered proprietor of the land and defendant in occupation of the land - where defendant alleged constructive trust from agreement with plaintiff to look after her and maintain the property - resolution at mediation - parties signed consent orders requiring court approval due to legal incapacity of plaintiff - settlement approved pursuant to s 76(4) Civil Procedure Act Legislation Cited: Civil Procedure Act 2005 (NSW) ss 73, 76 Cases Cited: Harvey v Phillips (1956) 95 CLR 235 Texts Cited: Nil Category: Principal judgment Parties: Joan Valma Hall by her tutor NSW Trustee & Guardian (Plaintiff) Daniel Hall (Defendant) Representation: Counsel: R W Tregenza (Plaintiff) In person (Defendant)