Supreme Court New South Wales Medium Neutral Citation: Westpac Banking Corporation v Thomson by her tutor the NSW Trustee and Guardian [2015] NSWSC 1256 Hearing dates: 26 August 2015 Date of orders: 26 August 2015 Decision date: 26 August 2015 Jurisdiction: Common Law Before: McCallum J Decision: Judgment for the plaintiff for possession of the land comprised in certificate of title identifier 101/29367 being the land situated at and known as 11 Wattle Avenue, North St Marys NSW 2760; order made pursuant to r 7.10(2)(a) of the UCPR that the proceedings continue in the absence of a representative of the Estate of the Late Gertrude Marina Thomson; execution of any writ of possession issued by the Court not to be scheduled sooner than six weeks from today. Catchwords: POSSESSION – where registered proprietor died after commencement of proceedings – son seeking to represent her Estate in the proceedings and to prosecute cross-claim – whether appropriate. Legislation Cited: Probate and Administration Act 1898 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Category: Procedural and other rulings Parties: Westpac Banking Corporation (plaintiff/cross-defendant) Gertrude Marina Thomson by her Tutor the NSW Trustee & Guardian (defendant/cross-claimant) Ian Thomson (applicant) Representation: Counsel: L Gor (plaintiff) Solicitors: Kemp Strang (plaintiff/cross-defendant) Defendant/cross claimant unrepresented Applicant in person File Number(s): 2012/75933 Publication restriction: None Judgment – Ex tempore 1. HER HONOUR: These are proceedings to enforce a mortgage. The proceedings were commenced by statement of claim filed on 7 March 2012. The proceedings were referred to me as duty judge today to determine an application by the bank for an order for possession of the security property. 2. The registered proprietor of the property is the late Gertrude Marina Thomson. She died on 20 October 2014. Pursuant to s 61 of the Probate and Administration Act 1898 (NSW), her estate is deemed to be vested in the NSW Trustee until probate or administration. In the circumstances, the bank also seeks an order under r 7.10 of the Uniform Civil Procedure Rules 2005 (NSW) that the proceedings continue in the absence of a representative of her estate. 3. As it happens, the Trustee was involved in the proceedings prior to the death of the registered proprietor. Some explanation is required. Default judgment was entered in the proceedings in September 2012 but subsequently set aside. A defence and cross-claim were filed in August 2014. The cross-claim asserts that, as at the date of its filing, the cross-claimant (that is, the late Ms Thomson) was 79 years of age and was suffering from severe Alzheimer's dementia. The cross-claim contended, in short, that the relevant loan documents were entered into by Ms Thomson in circumstances which would give rise to authority or power in the Court to relieve her from paying all or part of the secured debt. 4. Reflecting the contention in the cross-claim that Ms Thomson suffered from severe Alzheimer's dementia, at some point the NSW Trustee and Guardian was appointed as her tutor in the proceedings. 5. The solicitor on the record on the defence and cross-claim, Mr Patterson of Shaw McDonald, was evidently retained by the Trustee in those circumstances. Within months after the filing of the cross-claim, however, Ms Thomson died. 6. In May 2015, Mr Patterson filed a notice of ceasing to act. The proceedings then came before Campbell J who, on 17 June 2015, made orders relevantly including the following: 1. The NSW Trustee and Guardian be substituted as the defendant and cross claimant in these proceedings. 2. The defence filed 25 August 2014 be dismissed unless within 28 days of today a person appearing to have a legitimate interest makes an application to replace the NSW Trustee and Guardian as the defendant in these proceedings. 3. The statement of cross claim filed 25 August 2014 be dismissed unless within 28 days of today a person appearing to have a legitimate interest makes an application to replace the NSW Trustee and Guardian as the defendant in these proceedings. 1. The Trustee's attitude to the proceedings following Mr Patterson's ceasing to act and the orders of Campbell J is set out in a letter dated 17 August 2015 (exhibit A) as follows: "We refer to the documents served on NSW Trustee and Guardian on 7 August 2015. NSW Trustee & Guardian is not administering this estate. Where no grant of probate or administration has been made, we consider that the only action required pursuant to Section 61 of the Probate and Administration Act 1898, is to acknowledge receipt of service. The object of section 61 as stated in Re Kenniff (1955) 56 SR (NSW) 35 [at 40], is 'to put the title in the Public Trustee and to hold the position in status quo until a personal representative is appointed.' NSW Trustee & Guardian does not consider that this bestows an active role in relation to a deceased estate, in circumstances where we have not otherwise been appointed as executor or approached to undertake the estate administration. NSW Trustee and Guardian considers that the decision in GEL Custodians Pty Limited v The Estate of the late Geoffrey Francis Wells [2013] NSWSC 973 merely bestows a role as nominal defendant, with no active duties. Should it eventuate that the plaintiff intends to seek any additional orders suggesting that NSWTG has more that nominal obligations, we respectfully request prior consultation." 1. No application of the kind contemplated in the orders of Campbell J was made within the period of 28 days of the date of those orders. It follows that the orders, by force of their own terms, have given effect to the dismissal of the defence and the dismissal of the cross-claim. It is accordingly open to the bank to proceed to seek an order for possession today. 2. It may be noted that when the proceedings were initially commenced, the amount of the debt was in the order of $388,000. No repayments have been made by any member of the family and the debt has now escalated to a debt in order of $588,000. The secured property may be worth a small amount more than that but not significantly. 3. Today, one of the three children of the deceased, Mr Ian Thomson, has attended Court and made representations as to the orders he would seek. Mr Gor, who appears for the bank, did not oppose that course. Mr Thomson wished first to have the present application adjourned or otherwise delayed pending several steps he intends to take. First, he wishes to make an application to replace the NSW Trustee and Guardian as defendant in the proceedings on the basis of an anticipated application for administration of his mother's estate. 4. The other two children of the deceased are Ms Shelley Sheehan and Mr Patrick Thomson. Ms Sheehan and her husband, Mr Mark Sheehan were, together with Mr Ian Thomson, the co-borrowers who received the benefit of the funds advanced to the late Ms Gertrude Thomson. Mr Patrick Thomson has been served with documents which would have put him on notice of today's application and does not appear to have taken any interest in the proceedings. 5. A letter in evidence before the Court asserts that Ms Shelley Sheehan and Mr Mark Sheehan do not oppose the bank's obtaining possession of the property. It would appear that there may be some degree of conflict or at least lack of communication between Mr Ian Thomson on the one hand and the other siblings. It may be doubted in the circumstances whether he would be an appropriate representative of the deceased's estate in these proceedings, even if legally represented (which he is not). 6. Leaving aside that issue, Mr Ian Thomson wishes to prosecute the cross-claim previously filed on behalf of his mother and alternatively to take out a further loan to pay out the debt and remain in the home. It should be noted that the house has been his home and indeed the family home, he said, for a period of I think at least 45 years. 7. The difficulty with the proposal put forward by Mr Ian Thomson is that each of his current aims would appear to be unattainable. He has no income and, so far as the information he provided to me indicates, no assets or other means of presently refinancing the loan. He hopes to finance the purchase of the property with the proceeds of a cause of action he has not yet begun to prosecute relating to alleged assaults committed against him by officers on Sydney Trains. 8. Presently, he has commenced proceedings in NCAT to obtain further CCTV footage which he contends exists and which captured the alleged assault. He asserts that the footage he has obtained has been altered and that is why it does not provide evidence of the assaults. Whatever the merits of that claim, it is clear that as no proceedings have yet been commenced seeking damages there would be at least a year or two (and possibly considerably more) to pass before there would any fruit of such an action. 9. Separately, Mr Thomson indicated his desire to prosecute the cross-claim filed by Mr Patterson. However, leaving aside the question of his standing to do so, since he is one of the three persons for the benefit of whom the loan funds were retained, it seems unlikely that there would a substantial benefit to be obtained from those proceedings such as to result ultimately in his being able to hold on to the security property unless he obtains funds from another source. 10. As submitted by Mr Gor on behalf the bank, there is evidently a real risk of eroding any remaining equity in the estate by incurring legal fees if any of the courses proposed by Mr Thomson is allowed. Separately, it may be noted that the bank has demonstrated considerable patience in not proceeding to enforce the mortgage before now. 11. In all the circumstances, I am satisfied that it is appropriate to make an order for possession today. Further, I am satisfied that it is appropriate to make an order in the terms of r 7.10(2)(a) allowing the proceedings to continue in the absence of a representative of the deceased's person's estate. 12. The submissions made by Mr Thomson today reveal a proper basis for a hardship application for some period from today, enabling him to see to the orderly departure from the house which has been his home for such a considerable length of time, particularly in circumstances where I apprehend he would still be suffering a measure of grief following the death of his mother for whom he was the primary carer for many years. 13. Mr Thomson's submissions today have persuaded me that he is presently suffering from a degree of stress and there are indications of his being otherwise in poor mental health. Accordingly, unless the bank wishes to be heard on the matter, I propose to order that no execution of the writ of possession may be scheduled sooner than six weeks from today. 14. The orders are orders 1 and 2 in the notice of motion filed 30 July 2015 and a further order that the execution of any writ of possession issued by the Court not be scheduled sooner than six weeks from today. ********** 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: 08 September 2015