Mavis Irene McMahon By Her Tutor NSW Trustee and Guardian v Gail McMahon [2014] NSWSC 1706

Supreme Court New South Wales

Medium Neutral Citation: Mavis Irene McMahon By Her Tutor NSW Trustee and Guardian v Gail McMahon [2014] NSWSC 1706 Hearing dates: 1 December 2014 Decision date: 01 December 2014 Jurisdiction: Common Law Before: Davies J Decision: 1. Defence of 15 September 2014 struck out. 2. Defendant to file and serve Defence by 15 December 2014 3. Costs reserved. Catchwords: REAL PROPERTY - possession of land - claim for possession by NSW Trustee and Guardian as manager of registered proprietor - Defence filed disclosing no defence to claim - Defence struck out with leave to re-plead Category: Interlocutory applications Parties: Mavis Irene McMahon by her tutor NSW Trustee and Guardian (Plaintiff) Gail McMahon ( Defendant) Representation: Counsel: N Rapoport (Plaintiff) In person ( Defendant) Solicitors: Slater & Gordon (Plaintiff) In person ( Defendant) File Number(s): 2014/00240520

Judgment 1These proceedings were commenced on 15 August 2014, brought by the registered proprietor of the property of 4/10-12 Ross Street, Woy Woy, by the manager of her estate being the NSW Trustee and Guardian. 2The Defendant is the daughter of the Plaintiff and had formerly lived with the Plaintiff in the property and, she says, as her carer. It was necessary for the Plaintiff's affairs to be placed under the control of the NSW Trustee and Guardian and the Plaintiff has now been moved to some form of nursing home accommodation. 3The Defendant remains in occupation of the premises despite demands by the Trustee and Guardian on 5 February and 13 March this year that she vacate the premises. 4After the Statement of Claim was served, the Defendant filed a Defence on 15 September 2014. It does not contain any pleading at all. In the section of the Defence headed Pleadings and Particulars, it simply lists a Statement of Claim and Consent to Act as Tutor by the Trustee and Guardian filed on 13 August 2014. 5The Defendant has appeared before me today and has handed up a letter which she claims is an agreement that she had with her mother made in 2009 that is said to form the basis for her right to remain in the property. That letter has not earlier been disclosed either to the Plaintiff or to the Court. There is no reference to it in the Defence. 6In the circumstances, the Defence of 15 September 2014 is struck out. Because there is an outside chance that the letter that was handed to the Court might form a basis for a defence, I think, it is appropriate to allow the Defendant another opportunity to file a defence and such defence is to be filed by 15 December 2014 and served on the Plaintiff's solicitor by that date. 7I will stand the matter over to 16 December at 9.30 before me. Costs are reserved.