New South Wales Supreme Court CITATION : Bransgrove v Permanent Custodians Ltd [2006] NSWSC 747 HEARING DATE(S) : 14/07/06 JUDGMENT OF : Gzell J EX TEMPORE JUDGMENT DATE : 07/14/2006 DECISION : Application dismissed. CATCHWORDS : LANDLORD AND TENANT- Use and Occupation - Tenant served with Notice to Occupy by mortgagee in action for possession against landlord - Tenant assured by landlord that a mistake and takes no action - Tenant served with Notice to Vacate by sherriff - Seeks injunction restraining his eviction - No equity against mortgage or mortgagee PARTIES : Mr Stephen Bransgrove - Plaintiff appeared in Person FILE NUMBER(S) : SC 3821/06 IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION GZELL J FRIDAY 14 JULY 2006 3821/06 STEPHEN BRANDON BRANSGROVE v PERMANENT CUSTODIANS LTD EX TEMPORE JUDGMENT 1 Stephen Brandon Bransgrove is a tenant of Joseph James Melhem. On 25 October 2005, a notice to occupier was served on Mr Bransgrove by Permanent Custodians Ltd. Included with the notice was a copy of a statement of claim between Permanent Custodians and Mr Melhem. The notice stated that Permanent Custodians was claiming possession of land occupied by Mr Bransgrove. It said: "You may apply to the court for an order that you be added as a defendant in the proceedings." And it said: "If you do not apply to the court within 10 days after this notice is served on you: the court may enter judgment in your absence, and you may be evicted from the land." 2 Mr Bransgrove did nothing in response to that notice because he had a meeting with Mr Melhem when Mr Melhem said: "The incident with the sheriff was just a big mistake you can stay hear ( sic) and I will fix up the problem with the bank." 3 On Saturday 8 July 2006, the sheriff presented Mr Bransgrove with a notice to vacate stating that in the matter of Permanent Custodians and Mr Melhem the sheriff was commanded to place Permanent Custodians in possession of the lands and premises described as 90 Tuckwell Road, Castle Hill and that: "all occupants are hereby warned that they must vacate the premises without delay - in any event no later than 10:00:00 AM Tuesday 18 July 2006 otherwise action to evict will proceed without further warning." 4 On Monday 10 July 2006, Mr Bransgrove telephoned Rosemary Lodge the property manager with Century Real Estate Castle Hill. She said she had rung Mr Melhem and he was going to get back to her. She said she would ring him again. Mr Bransgrove telephoned Ms Lodge again on Tuesday 11 July 2006 and she said Mr Melhem was going to talk with his solicitor. 5 Mr Bransgrove then telephoned the sheriff's office and got details of the solicitors for the mortgagee and then telephoned them and spoke to Deanna Mendez at Hicksons Lawyers. He addressed a facsimile to Ms Mendez in which he proposed that because it would be difficult to vacate the property and arrange alternative accommodation by 18 July 2006, and since that would leave the property vacant and vulnerable to undesirables: "we propose that we should continue living at the property and paying rent to Permanent Custodians Limited for an interim period." 6 Mr Bransgrove received a telephone call from Hicksons Lawyers on Friday 14 July 2006 informing him that the mortgagee would not let him stay at the property after 10.00 am on Tuesday 18 July 2006. 7 Mr Bransgrove seeks relief in equity from being evicted from the premises. 8 In my view, Mr Bransgrove has no equitable right against Permanent Custodians. He may have rights against Mr Melhem who misled him into believing that he need not take any action when he was served with the notice to occupier. But that was not a matter for which Permanent Custodians is responsible. They were entitled to take the action they did in the absence of his being joined as a defendant, and the order of the court is to be perfected by the notice to vacate that he has received. 9 The Court, in my view, should make no order in Mr Bransgrove's favour. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.