Pope v Bourke [2016] NSWSC 600

Supreme Court New South Wales

Medium Neutral Citation: Pope v Bourke [2016] NSWSC 600 Hearing dates: 04 May 2016 Date of orders: 04 May 2016 Decision date: 04 May 2016 Jurisdiction: Common Law Before: Wilson J Decision: (1) The defence filed by the defendant dated 14 January 2016 is struck out.

(2) The plaintiff is given liberty to apply for a default judgment.

(3) The time for service of the notice of motion is abridged.

(4) An order for costs as agreed or assessed against the defendant in favour of the plaintiff. Catchwords: PRACTICE AND PROCEDURE – possession of land – no evidence filed in support of defence – defence struck out - no appearance for defence - liberty to apply for default judgment Category: Procedural and other rulings Parties: Marilyn Vicki Pope (Applicant) Christian William Bourke (Respondent) Representation: Counsel: Mr A Hill (Plaintiff)

Solicitors: Armstrongs Solicitors (Plaintiff) File Number(s): 2015/00361922 Publication restriction: None

EX TEMPORE Judgment 1. Before the court this morning by Notice of Motion is an application filed by Marilyn Vicki Pope as executrix of the estate of the late Carol Ann Bourke. In the Notice of Motion the plaintiff seeks the following orders: 1. The Defence filed by the defendant Christian Bourke dated 14 January 2016 be struck out; 2. The plaintiff be given liberty to apply for default judgment; 3. The time for service of the Notice of Motion be abridged; and 4. The defendant pay the plaintiff's costs as agreed or assessed and a final order for such orders as the court sees fit in the circumstances. 1. Christian Bourke has been called outside the court three times at ten minutes past ten this morning and he has not appeared to answer the Notice of Motion. Evidence has been placed before the court by the plaintiff which establishes that the defendant is well and truly advised and aware of these proceedings. 2. Mr Bourke was served personally with documentation relating to the proceedings on 14 April 2016 and additionally two separate law firms which have from time to time acted for him in these proceedings were also served with the relevant documentation. 3. On 14 April 2016 the law firm known as the Charlestown Law Firm was served with a copy of the Notice of Motion together with a copy of an affidavit of Stephen John Churches of 14 April 2016. A separate law firm which has also acted for the defendant from time to time, Bale Boshev, was also served on the same date with the relevant documentation. 4. Further, correspondence relating to the action and today's listing was additionally served personally on Mr Bourke on 22 April 2016 and on each of the two law firms which have acted for him from time to time. Bale Boshev have provided correspondence to the plaintiff's solicitors dated 3 May 2016 and marked "Urgent", which I will formally note as Exhibit B, in which they say that they have been unable to obtain instructions from Mr Bourke and do not propose to appear today on his behalf. The correspondence, which is under the hand of Phillip Brogan, further indicates that Mr Bourke was advised by Bale Boshev of the Notice of Motion and related correspondence. 5. It is abundantly clear that that the defendant is aware of today's proceedings and for whatever reason has chosen not to attend and not to be heard in relation to the notice of motion filed by the plaintiff. 6. The action broadly relates to possession of a house which constitutes the whole of the estate of Carol Ann Bourke. Mrs Bourke is the defendant's mother and by her will, she left the property in which the defendant currently resides in equal shares to her two children, that is, the defendant and one other child. 7. The defendant was living in the property at the time of his mother's death and he has continued to live in the property throughout. The estate having no other assets or property, it is the decision of the executrix that the house must be sold both to pay the costs of the property and to effect the division of the assets between the late Mrs Bourke's two children. 8. The executrix plaintiff was granted probate of the will on 1 October 2015 and she has the authority and legal capacity to deal with the asset of the estate, that being, premises at 9 Adams St, Blackalls Park. The plaintiff obtained transmission of the property to her on 15 October 2015 with a certificate of title issuing to her as executrix. 9. In affidavit evidence from the plaintiff which is before the court, it is clear that the defendant has been aware of the intention to sell the sole asset of the estate so that it might be divided between the children. 10. The plaintiff deposes in her affidavit of 3 December 2015 that she spoke with the defendant in July 2015 to advise him of what would need to occur. The defendant told the plaintiff then that he wished to buy the house but it would be necessary for him to obtain the necessary funds to buy the half share of the house that would be due to his sister under his mother's will. There was some discussion between the plaintiff and the defendant about his continuing occupation of the property. In June of 2015 the plaintiff had advised the defendant that he would have to pay an occupation fee to continue to reside at the premises. The defendant undertook to pay $350 per fortnight as an occupation fee for his residence at the premises. The plaintiff advised the defendant that the occupation fee was necessary to meet the various bills associated with the property. 11. Since 9 July 2015 the defendant has paid some moneys by way of an occupation fee to the plaintiff but that seems to amount to no more than a total of $700 since 9 July 2015. The last payment made by the defendant was on 30 July 2015 but there has been nothing further. The plaintiff, who is not a beneficiary under the will, has borne the expenses of these proceedings together with some expenses related to the deceased's funeral and to the maintenance of the property, the asset in the estate. She deposes that it is necessary for the property to be sold so that outstanding testamentary expenses can be met and so that the defendant's sister, the other beneficiary, and the executrix can both be reimbursed for moneys which have been expended by each to date in connection with the administration of the estate. 12. A defence to the plaintiff's action was filed by the defendant on 28 January 2016. That defence broadly asserts that the conversations between the plaintiff and defendant as to the payment of an occupation fee in fact raised a residential tenancy and, as a tenant under a residential tenancy, the defendant asserts that this Court has no jurisdiction to deal with this matter. Ordinarily a residential tenancy and a dispute as to possession would be dealt with by the tribunal NCAT. 13. The Court ordered the defendant to file and serve affidavits upon which he relied in support of his defence by 23 March 2016. Nothing has been filed by the defendant in accordance with the orders of the Court, and evidence has been tendered by the plaintiff to the effect that nothing has been served upon the plaintiff or her legal representatives in compliance with the Court's orders. That is, there has been a Defence filed but no evidence whatsoever in support of that defence has been provided by the defendant and, in knowledge of the proceedings listed today, Mr Bourke has not attended and has taken no steps to advise the Court of what, if anything, he has done to comply with the Court's orders. 14. On all of the evidence filed by the plaintiff, and I will formally mark the folder of documents which simply collates material electronically filed with the court as exhibit A, I am satisfied that the plaintiff is financially disadvantaged by her inability to sell the asset of Mrs Bourke's estate in an effort to comply with the testator's wishes that the property be divided in equal shares between her two children. 15. Mr Bourke's defence is inconsistent with the evidence filed by the plaintiff and there is in any event no evidence at all in support of the bare assertion made in the defence. Particularly having regard to the fact that the defendant has neither attended today nor sought to contact the Court, nor instructed his lawyers to attend for him, it seems to me the Court is entitled to draw the conclusion that the defendant is not able to file evidence in support of his defence and that the defence is a hollow one. 16. That being the case, I am prepared to grant the orders sought by the plaintiff in the Notice of Motion dated 14 April 2016 and accordingly I make the following orders: 1. The Defence filed by the defendant dated 14 January 2016 is struck out. 2. The plaintiff is given liberty to apply for a default judgment. 3. The time for service of the Notice of Motion is abridged. 4. An order for costs as agreed or assessed against the defendant in favour of the plaintiff.