Supreme Court New South Wales Medium Neutral Citation: Girdham v Girdham [2016] NSWSC 1694 Hearing dates: 29 November 2016 Date of orders: 29 November 2016 Decision date: 29 November 2016 Jurisdiction: Common Law Before: Garling J Decision: See [18] and [21] Catchwords: POSSESSION – where defendant consents to vacation of property but seeks an order as to the period of vacation – whether 28 days from exchange of contracts of sale would be a reasonable period Legislation Cited: Civil Procedure Act 2005 Cases Cited: Not applicable Texts Cited: Not applicable Category: Procedural and other rulings Parties: Jann Maria Girdham (P) Parrish Girdham (D) Representation: Counsel: A Shand (P) M Hadley (D) Solicitors: Makinson d'Apice Lawyers (P) Enrights Solicitors (D) File Number(s): 2016/183302 Publication restriction: Not Applicable EX TEMPORE Judgment 1. These proceedings have been commenced by Jann Maria Girdham by her tutor, the New South Wales Trustee and Guardian ("the Trustee"). The NSW Trustee and Guardian was appointed on 2 November 2012 as the financial manager of Mrs Girdham by an order of the NSW Civil and Administrative Tribunal. 2. Mrs Girdham is now, and has been for many years, the registered proprietor of land and a house in which she lived in Lorn, near Maitland in NSW ("the Property"). 3. In 1999, the defendant, Parrish Girdham, who is the plaintiff's son, moved in to live with his mother at the Property. Except for a short period between 1998 and 1999, he lived there from about 1992 onwards. On 23 November 2012, Mrs Girdham left the Property and moved to the Bimbadeen Residential Community ("Bimbadeen"). She has remained at Bimbadeen ever since. 4. As is the ordinary requirement of aged care residential providers, Mrs Girdham was required to pay an accommodation bond of $242,000. She had no assets sufficient to pay that bond, other than by the sale of the Property. Quite why it took the Trustee 3½ years to commence proceedings seeking possession of the Property so that it could arrange its sale is unexplained in the evidence. Perhaps that is not surprising – it would be very hard to mount a rational explanation of that lengthy period of delay. 5. However, the defendant has had the benefit of that delay. He was first notified in November 2014 that the Trustee intended to proceed with the sale of the Property. It was not until August 2015 that he was asked to vacate the Property. He has not done so. In effect, the defendant has had the benefit of living in this property without payment of rent for the past 17 years. He gives evidence, which is unchallenged, that he has maintained the Property during that period of time and has also spent money on the renovation and upkeep of the Property which has improved its value. According to a valuation which has been placed before the Court, that improvement is in the sum of about $160,000. Mr Girdham claims that he expended money on the Property because he was promised by his mother that he would inherit it. 6. In response to the Trustee's claim for possession, Mr Girdham has filed a cross-claim in which he sets out in some detail the work that has been undertaken, the moneys he has expended on the work, and the number of hours of labour which he has contributed. He also describes in his claim the work he has generally done to maintain the Property. There is no evidence before this Court that what Mr Girdham says he has done has not occurred, and there is some evidence which corroborates what he has done. 7. Against that background of the dispute the plaintiff, by her tutor, on 18 November 2016, filed a Notice of Motion seeking summary judgment pursuant to r 13.1 of the Uniform Civil Procedure Rules 2005 ("the UCPR"). But for the defendant's consent to all of the orders, with the exception of some suggested amendments to Orders 2 and 6, I would not have been prepared to grant summary judgment. That is because the affidavit filed in support of the Notice of Motion does not meet the requirements of r 13.1 of the UCPR. 8. However, that difficulty has been overcome because the defendant consents to Orders 1, 3, 4 and 5 of the Notice of Motion without alteration but seeks amendment to Orders 2 and 6. I therefore need to say something about Orders 2 and 6. Before doing so I need to remark that, as a consequence of this Notice of Motion, the plaintiff will have judgment for possession. She will have leave to issue a writ of possession immediately, which is to lie in the Office of the Sheriff, and the defendant has agreed to facilitate the sale of the Property, and to do a number of specific things prior to his vacation of the Property. 9. Order 2 seeks an order that the defendant must vacate the Property within 7 days of receiving written notice that the contracts for sale of the Property have been exchanged. Counsel for the defendant accepts that the Court should make an order which requires his client to vacate the Property, but seeks a specified time period prior to the completion of the sale, rather than after the exchange. Counsel submits that it would not be an appropriate order for the Court to require his client to leave the Property and arrange alternative accommodation in circumstances where the Property might then remain vacant for a considerable period of time. As well, counsel for the defendant submits that he is not particularly well off and that having to arrange alternative accommodation will not be particularly easy, and in those circumstances he would be entitled to remain in the Property where he has been living since 1999 for as long as is reasonably practicable. 10. As well, counsel for the defendant pointed to the statement of the defendant on his oath. At paragraph 9 of his affidavit, he stated that he is prepared to remove himself and all of his possessions from the Property, and has been prepared to do so since 8 October 2015, when he informed a representative of the Trustee that he would vacate the Property. Counsel notes that there is no evidence to contradict that statement. 11. Counsel for the plaintiff submitted that it is reasonable for the Court to make the orders sought because the plaintiff should not be put to any concern about its capacity or ability to provide vacant possession at the time of completion of the sale of the Property. Counsel submitted, in effect, that unless the defendant is out of the Property in good time before settlement, there is a risk that the settlement of the Property might not proceed expeditiously. 12. The Trustee does not put on any evidence of what it intends to do by way of sale of the Property. That is to say it puts on no draft contract for sale which would indicate what the likely settlement period would be. It puts on no statement by a responsible officer as to the proposed likely sale period in the marketing campaign. 13. Submissions have been made from the Bar Table that it is unlikely, given the time of year, that the Property will be sold before Christmas. It is more likely that it will be marketed and sold in January and February next year. Submissions are also put from the Bar Table that there is no reason to think that the typical six week period would not be the settlement period contained in the contract. 14. All of that may be so. However, the terms and conditions of the contract which are ultimately signed will depend upon the willingness of the purchaser to comply with the terms proffered by the vendor or, alternatively, the willingness of the vendor to amend the terms to enable the sale to be made. These are entirely matters of speculation. 15. On the one hand, the Trustee is entitled to certainty with respect to vacant possession so as to be able to complete the settlement of the contract. On the other, obtaining possession ought not be done in a way which significantly prejudices the defendant who, on the evidence before me, has looked after and maintained the Property for a considerable period of time. 16. In those circumstances, I think a reasonable period for vacation of the Property, and for the defendant to give up possession, is 28 days from the receipt of written notice that contracts of sale have been exchanged. However, my conclusion in respect to this is on the basis that a typical six week period is likely to be allowed between exchange and completion. I will reserve to either party liberty to apply with respect to the order which I propose to make if the contract which is exchanged has a period other than a six week settlement period. 17. Order 6 is not opposed. That is an order that the defendant pay the plaintiff's costs. What is proposed is that the plaintiff be entitled to obtain the benefit of an order for those costs, but that the costs not be payable before the conclusion of the proceeding on the cross-claim. This seems to me, in all the circumstances, to be entirely appropriate and in the interests of justice. 18. Accordingly, with respect to the Notice of Motion which has been largely disposed of by consent, but not entirely, for the reasons which I have given, I will make the following orders: 1. Order that there be judgment for the plaintiff for possession of the land comprised in Folio Identifier 27/32523, being the land situated at and known as 11A Nilo Street, Lorn, in the State of New South Wales. 2. Order that the defendant is to vacate the property within 28 days of receiving written notice that contracts for sale of the property have been exchanged. 3. Order that the plaintiff has leave to issue a writ of possession immediately in respect of the property and that writ is to lie in the office of the Sheriff of New South Wales and is only to be executed if the defendant fails to comply with Orders 2, 4 and 5. 4. Order that the defendant is to allow the plaintiff's agents, contractors and potential purchasers access to the property at Lorn upon 24 hours' notice at all reasonable times in order to facilitate the sale of the property. 5. Order that the defendant is to take all steps to ensure that: 1. he will not be present at the property during sales and inspections; 2. he will maintain the property until he vacates it; 3. he will keep the property in a reasonable state of cleanliness and repair until he vacates it; and 4. he will not remove any of the fixtures from the property. 1. Order the defendant to pay the plaintiff's costs. I order that those costs are not to be payable prior to the conclusion of the proceedings on the cross-claim filed 8 November 2016. 2. I grant the parties liberty to apply on two days' notice with respect to order (2) in the event that the contracts for sale which have been exchanged contain a settlement period different from a 42-day period. 1. I now propose to make some directions with respect to the existing cross‑claim. 2. I note that in the cross-claim proceedings the cross-defendant is to file a defence to the cross-claim on or before 19 December 2016. 3. I make the following orders: 1. Pursuant to s 26 of the Civil Procedure Act, I refer the whole of the proceedings on the cross-claim to a Court appointed mediator. 2. Direct that mediation take place on or before 10 February 2017. 3. Direct the parties to attend upon the listing authorities to arrange a suitable date for Court appointed mediation. 4. Vacate the listing date of 12 February 2016 before the Registrar. 5. Stand the proceedings over for further directions before the Registrar at 9am on 17 February 2017. 6. Grant the parties liberty to apply on two days' notice. ********** Amendments 28 December 2016 - Review amendment 28 December 2016 - Further review amendment 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: 28 December 2016