Lowery v Lowery [2013] NSWSC 691

Supreme Court New South Wales

Medium Neutral Citation: Lowery v Lowery [2013] NSWSC 691 Hearing dates: 29 May 2013 Decision date: 29 May 2013 Before: Ball J Decision: See paragraph 11 Catchwords: REAL PROPERTY - application for mesne profits PROCEDURE - civil - application heard in the absence of the defendant Category: Principal judgment Parties: Robert Lowery (Plaintiff) Mark Lowery (Defendant) Representation: M Vincent (Plaintiff) Bale Boshev Lawyers (Plaintiff) File Number(s): 2010/374967 Publication restriction: Nil

Ex TEMPORE Judgment 1On 14 November 2007, Elva Beatrice Lowery died intestate. She was survived by two sons, the plaintiff and the defendant. The estate's principal asset was a house in Glendale, which was occupied by the defendant. 2The plaintiff was granted letters of administration of the deceased's estate on 21 December 2009. On 21 January 2010 the plaintiff demanded that the defendant vacate the property. The defendant failed to do so and on 8 November 2010 the plaintiff commenced these proceedings for vacant possession and other consequential orders including mesne profits. 3An order for vacant possession and leave to issue a writ for possession were made on 18 March 2011. The writ of possession was executed on 30 August 2011 and the property was subsequently sold. Before its sale the plaintiff incurred expenses of $3,265.78 in cleaning up and repairing the property, which had been left in a terrible state by the defendant. 4By notice of motion filed on 28 November 2012 the plaintiff seeks orders that the defendant pay mesne profits of $39,682 and damages of $3,265.78. 5There were difficulties serving the defendant and ultimately the court made an order on 6 March 2013 for substituted service of the motion on the defendant's doctor. The notice of motion was served in accordance with that order. 6The return date of the motion was 17 May 2013. There was no appearance by the defendant at that time. However the defendant's doctor wrote to the plaintiff's solicitors on 18 March 2013, saying: Mark [meaning the defendant] came in to see me today and I handed him the envelope that you had asked me to give him. He said he would take it to his solicitors. 7On 17 March 2013 the matter was stood over until today, 29 May 2013. The plaintiff's solicitors notified the defendant of that fact again through the defendant's doctor. The matter was called today but there was no appearance by the defendant. 8It is noteworthy that in an earlier letter from the defendant's doctor to the plaintiff's solicitor dated 26 March 2012, the defendant's doctor said: Mark is living in rented accommodation in the Newcastle CBD and I suppose it would be a breach of confidence to disclose his exact address. His mental state is such that he is paranoid and unwilling or unable to follow up anything, including attending to health matters. He refuses any outside help from agencies that could provide him with assistance. I wonder if he has a fear that he may be institutionalised. Therefore I do not think he will be willing to make contact with his brother as I think there is a degree of animosity between them. 9Having regard to those matters I am satisfied that it is appropriate to proceed today in the absence of the defendant. 10The plaintiff has submitted evidence from a registered real estate valuer concerning the market rental of the property during the period that it was occupied by the defendant following the death of his mother. The claim for mesne profits is calculated in accordance with that evidence. The plaintiff has also submitted evidence that the property was in a terrible mess when the defendant vacated it and I am satisfied that the costs of cleaning and repairing it were reasonable. 11In those circumstances I am satisfied that the following orders should be made: (1)The defendant is to pay to the plaintiff the sums of: (a)$39,770.10 for mesne profits; and (b)damages of $3,265.78 (2)The defendant is to pay the plaintiff's costs of the proceedings. (3)The plaintiff's costs are to be paid from the estate of the late Elva Beatrice Lowery on an indemnity basis.