Myra May Worth by her tutor NSW Trustee and Guardian v Rodney Worth [2019] NSWSC 122

Supreme Court New South Wales

Medium Neutral Citation: Myra May Worth by her tutor NSW Trustee and Guardian v Rodney Worth [2019] NSWSC 122 Hearing dates: 19 February 2019 Date of orders: 19 February 2019 Decision date: 19 February 2019 Jurisdiction: Common Law Before: Davies J Decision: 1. Defence dated 30 November 2018 struck out.

2. Defendant to file and serve further defence by 5 March 2019. Catchwords: REAL PROPERTY – Possession List – claim by registered proprietor against licensor – defence filed does not plead a defence to claim – defence struck out – leave to re-plead Category: Procedural and other rulings Parties: Myra May Worth by her tutor NSW Trustee and Guardian (Plaintiff) Rodney Worth (Defendant) Representation: Counsel: B Jones (Plaintiff) In person (Defendant)

Solicitors: Lamrocks (Plaintiff) Self-represented (Defendant) File Number(s): 2018/228426 Publication restriction: Nil

Judgment 1. These proceedings commenced on 25 July 2018. They are brought by a tutor for the registered proprietor of a property at 18 Lake Heights Road Lake Heights. The plaintiff has been placed under the care of the NSW Trustee & Guardian. 2. The plaintiff and the late Geoffrey James Worth were the registered proprietors of the land. Geoffrey James Worth died on 9 August 2016. They owned the property together as joint tenants. 3. The defendant, who is the son of the plaintiff, is in occupation of the property. He says that he has lived in the property for 52-years and he wishes to stay there. He claims to have permission from the plaintiff to stay in the property. 4. He has filed a defence on 30 November 2018 where he claims to be a protected person and says that he is entitled to live in the house after his mother moved into a nursing home. He says he is her only family. He says that he is the executor of her will and that he has permission from the plaintiff to reside in the property. 5. None of those matters constitutes a defence to a claim for possession. The defendant is at best a licensor, and his right to reside in the property has been withdrawn. The NSW Trustee & Guardian has the right to seek possession of the land. It does so for the purpose of the sale of the property so that the costs associated with the plaintiff's care can properly be met. 6. The defendant is unrepresented. He says that he now wishes to obtain legal advice. The present defence should not be allowed to stand because it does not provide any defence that the law recognises. In the circumstances that the defendant is unrepresented I am prepared to adjourn the matter for a brief period to enable him to get legal advice and, if he wishes, to file a further defence pleading a proper defence to the claim that is made in the statement of claim. 7. Accordingly, the defence filed 30 November 2018 is struck out. The defendant is given leave to file a further defence provided that defence pleads a defence that the law recognises to the claim for possession. Any such defence in that regard is to be filed and served by 5 March. I will adjourn the proceedings to 8 March at 2.30pm before me.