Supreme Court New South Wales Medium Neutral Citation: Starwhist Pty Limited v Tonge [2017] NSWSC 1625 Hearing dates: 24 November 2017 Date of orders: 24 November 2017 Decision date: 24 November 2017 Jurisdiction: Common Law Before: Schmidt J Decision: Application to vacate the hearing is refused. Catchwords: PROCEDURE – notice of motion – application to vacate the hearing date – refused Category: Procedural and other rulings Parties: Starwhist Pty Ltd (Plaintiff) James Malcolm Tonge (Defendant) Representation: Counsel: Mr A Macauley (Plaintiff) Mr R Higgins (Defendant) Ms A Smith (Mr Blair) Solicitors: David Legal (Plaintiff) Colwell Wright Solicitors (Defendant) Speirs Ryan (Mr Blair) File Number(s): 2017/63228 Publication restriction: Nil EX TEMPROE Judgment 1. HER HONOUR: This is an application to vacate the hearing of proceedings for possession of an olive farm which has been brought against Mr Tonge in circumstances where the statement of claim, on its face, does not identify him to be a trustee, but it appears be common ground that he is the trustee of the unit trust which owns the property. 2. By motion for which Mr Tonge was given leave to file in Court today, he seeks an order vacating the hearing of the proceedings scheduled to commence on Monday next. 3. That application comes forward in circumstances dealt with in an affidavit which Mr Tonge swore on 22 November 2017, in which he deposes that at a meeting of unit holders on 8 November a resolution was purportedly passed removing him as trustee for the trust and appointing Mr Blair, the sole director of one of the unit holders, in his place. Mr Tonge disputes the validity of the resolution and the convening of the meeting. 4. By notice of motion filed today for Mr Blair, to whose appearance there was no objection by the parties this morning, Mr Blair seeks an order granting him leave to be joined as a defendant, as trustee of the unit trust. 5. It also appears that proceedings have been commenced in this Court in relation to the question of whether or not Mr Tonge is any longer the trustee of the trust. 6. In those circumstances Mr Tonge says that because of the uncertainty as to the holder of the office of trustee of the trust the hearing due to commence on Monday next in these proceedings, cannot proceed. 7. That application is opposed by the plaintiff, who says that what is in truth in issue in the proceedings due to commence, are issues going to questions of the calculations of interest and whether Mr Tonge is entitled to rely on an agreement postdating the mortgage. 8. There is no issue that Mr Tonge is the registered proprietor of the property. There is no exclusion, I am told, in the mortgage documents excluding Mr Tonge's liability under the mortgage in the event that Mr Blair is no longer the trustee of the unit trust. 9. The plaintiff has indicated that it will not oppose the application for Mr Blair to be joined as a party to the proceedings. As trustee Mr Blair has proposed to consent to the orders which the plaintiff seeks. 10. Mr Tonge intends to resist those orders, it would appear, irrespective of whether or not he is the trustee, given what appears to be his personal liabilities under the mortgage. 11. It is in all of those circumstances that I am not satisfied that the hearing of the matter due to commence on Monday next should be vacated. Obviously enough it will be for the trial judge to deal with the application which Mr Blair has made by way of motion, to be joined as a party, but that can be conveniently dealt with at the commencement of the hearing on the affidavit material which has been filed. 12. The application to have the hearing vacated is refused. The usual order as to costs under the Rules is that they follow the event. In this case that would be an order against Mr Tonge in favour of the plaintiff. 13. The parties not wishing to be heard on that order, Mr Tonge is ordered to pay the costs of the motion. ********** Amendments 24 November 2017 - typographical error 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: 24 November 2017