Dominic Morabito & Anor v Terence Steven O'Sullivan & Anor [2014] NSWSC 1329

Supreme Court New South Wales

Medium Neutral Citation: Dominic Morabito & Anor v Terence Steven O'Sullivan & Anor [2014] NSWSC 1329 Hearing dates: 26 September 2014 Decision date: 26 September 2014 Jurisdiction: Equity Division Before: Kunc J Decision: Order for possession made Catchwords: REAL PROPERTY - Possession - Trustees for sale - Where former co-owner refuses to vacate premises - No issue of principle Legislation Cited: Conveyancing Act 1919 (NSW) Category: Principal judgment Parties: Dominic Morabito (First Applicant) Paul Morabito (Second Applicant) Terence Steven O'Sullivan (First Respondent) Jill Catherine Pirtle (also known as Catherine Thayer) (Second Respondent) Representation: Counsel: C. Cassimatis (Applicants) Solicitors: Morabito Legal (Applicants) File Number(s): 2011/92347 Publication restriction: No

EX TEMPORE Judgment 1HIS HONOUR: By motion filed on 5 September 2014 the applicants on the motion seek orders against the first respondent to give possession of certain land at Umina Beach (the "Property"). 2The applicants are trustees for sale of the Property pursuant to s 66G of the Conveyancing Act 1919. The first respondent (Mr O'Sullivan) and the second respondent (Ms Pirtle) were previously in a de facto relationship. As a consequence of the breakdown of that de facto relationship, the Court made orders for sale of the Property pursuant to s 66G. The evidence discloses that, for no apparent reason, Mr O'Sullivan has been thwarting the sale of the Property by the trustees by failing to give vacant possession of the Property. Ms Pirtle no longer resides there. 3The Court is satisfied that an order for possession should be made and leave to issue a writ should be granted. However, there is one technical concern in relation to the formal service of the motion and supporting evidence on Mr O'Sullivan. The applicants have tendered two pieces of correspondence addressed to Mr O'Sullivan at the Property. The first enclosed the notice of motion and the affidavit in support and informed him that the proceedings were to be before the Court on 15 September 2014. The second informed him that the matter has been listed for hearing today. 4Unfortunately, the tender of that correspondence does not constitute formal proof that the motion has been brought to the personal attention of Mr O'Sullivan. In a matter such as this, involving orders for possession, the Court must be satisfied (in the absence of an order for substituted service) that the respondent has been given personal notice of the proceedings and, therefore, had an opportunity to oppose the seeking of those orders. While I accept that the evidence discloses a history of non-co-operation on the part of Mr O'Sullivan, that evidence, even when coupled with the evidence of the correspondence, does not satisfy the Court that personal service of the motion on Mr O'Sullivan has been effected. 5I propose to approach the matter practically. The applicants should be spared, if it is possible, the cost of any further appearance in relation to the motion, given Mr O'Sullivan's unco-operative attitude to date. For that reason the Court will make orders for possession and for the issue of a writ, but on the basis that the applicants will not be entitled to issue a writ for possession of the Property for 30 days after the date on which they are able to prove there has been personal service of the Court's orders, and these reasons, on Mr O'Sullivan. This will give Mr O'Sullivan a final opportunity in the 30 day period to approach the Court, if he wishes, to seek to set aside the orders I will make today. 6Finally, in relation to costs, orders are sought for costs against Mr O'Sullivan on the indemnity basis. The evidence satisfies me that there is no explanation as to why Mr O'Sullivan should have been seeking to thwart the sale of the Property by remaining in possession notwithstanding the Court's orders for sale. That is conduct which, in a legal sense, is so unreasonable as to engage the Court's power to order costs on the indemnity basis and I will do so. 7Accordingly, the Court: (1)Orders pursuant to ss 20 and 92 of the Civil Procedure Act 2005 (NSW) that the first respondent give possession of the land contained in XXXX, New South Wales ("Property") within 7 days. (2)Grants leave to the first and second applicant to issue a writ of possession of the Property 30 days after the date on which these orders and a copy of the Court's reasons have been personally served on the first respondent. (3)Orders the first respondent pay the first and second applicants' costs associated with this application (including all costs associated with enforcing these orders for possession of the Property), on an indemnity basis. Such costs to be paid from the proceeds of the first respondent's share in the sale of the Property. 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. Decision last updated: 26 September 2014