Supreme Court New South Wales Medium Neutral Citation: Belle (as executor of the estate of the late Shirley May Belle) v Belle [2019] NSWSC 1165 Hearing dates: 5 September 2019 Date of orders: 26 September 2019 Decision date: 26 September 2019 Jurisdiction: Common Law Before: Harrison J Decision: See [13] Catchwords: CIVIL PROCEDURE – where defendant granted right of occupation of property on certain conditions by her mother's will – where defendant allegedly failed to comply with conditions – where trustee of deceased's estate obtained writ of possession against defendant – where defendant remained in possession of land – where trustee now applies for assessment of damages against defendant – where no appearance from defendant – whether court should proceed in absence of defendant Legislation Cited: UCPR 16.3 Category: Principal judgment Parties: Colin Frederick Belle (Plaintiff) Jeanette Rose Belle (Defendant) Representation: Counsel: W Chan (Plaintiff) Solicitors: Oliver Campbell Heslop (Plaintiff) File Number(s): 2019/92949 Publication restriction: Nil Judgment 1. HIS HONOUR: The plaintiff is the executor of the Will and trustee of the Estate of the late Shirley May Belle who died on 22 February 2017. Probate of the Will of the deceased dated 28 May 2012 was granted to the plaintiff on 17 May 2018. The plaintiff and the defendant are respectively the son and daughter of the deceased. The plaintiff is uncontroversially the current registered proprietor of the property. 2. At the date of her death, the deceased was the registered proprietor of the property situated in Alfred Street, Cessnock where she resided with the defendant. By her Will, the deceased made the following provision with respect to that property: "I GIVE DEVISE AND BEQUEATH unto my Executors and Trustee hereinafter named any land and residence owned by me together with the furnishings therein UPON TRUST for the use and benefit of my daughter JEANETTE ROSE BELLE during her lifetime or until such time as she advises my Trustees that she is no longer desirous of occupying the premises or until such time as her treating doctor in their [sic] discretion form the opinion that she is no longer capable of living in the said premises AND SUBJECT to the payment by the said JEANETTE ROSE BELLE of all rates and taxes insurances to the full insurable value and necessary repairs applicable in respect to the subject premises AND UPON the death OR notice in writing that she desires to cease occupation or the formation of the opinion by her treating doctor that it is no longer in the best interest of the said JEANETTE ROSE BELLE to occupy the aforesaid premises then I DIRECT that such land premises and contents shall be sold and distributed as follows…" 1. Each of the plaintiff and the defendant and their sister were given a one-third interest in the net proceeds of sale of the property after the provision of small legacies to be paid out of those proceeds in favour of three grandchildren of the deceased. 2. By his statement of claim filed on 25 March 2019, the plaintiff sought an order for possession of the land and what are described as "damages for trespass at the rate of $290 per week from 7 September 2018". The statement of claim pleaded that the Will of the deceased granted the defendant the use and benefit of the Cessnock property for her lifetime but that it was a further term of the Will that her use and benefit of the property was "subject to payment by [her] of all rates, taxes, insurance to the full insurable value, and for necessary maintenance and repairs." The statement of claim pleads further that the defendant has resided in the property since before the death of the deceased. 3. The statement of claim proceeds to allege that the defendant has failed to pay council and water rates and has not confirmed that she has insured the property. On 19 July 2018, the plaintiff served a notice to vacate the property upon the defendant, requiring her to do so on or before 7 September 2018. The statement of claim pleads that by remaining in possession of the property, the defendant has committed a trespass and that that trespass is continuing. The statement of claim contends further that by reason of these things, "the plaintiff has been deprived of the use and enjoyment of the said property, and has thereby suffered loss and damage." 4. On 11 July 2019, the plaintiff moved the Court by notice of motion filed on that day for leave to issue a writ of possession. The affidavit filed in support of that motion was sworn by the plaintiff on 5 July 2019 and contains the following: "Default in observation of the conditions of occupation 9. The claim for possession of land arises from default in the payment of money which was a condition of occupation of the defendant of the property. The particulars of the default are: (a) Unpaid Cessnock City Council rates of $3,434.77 as at 30 June 2019; and (b) Unpaid Hunter Water rates of $2,815.19 as at 14 May 2019. Total $6,285.96… 10. No payments have been made by the defendant to reduce any of those liabilities. 11. The claim for possession also arises from failure of the defendant to insure the property which was a condition of her occupation… 12. On 3 May 2017 and 26 May 2017 I caused my solicitors to send two letters to the defendant requesting a copy of any current home insurance policy be provided to me… 13. I did not receive any reply from the defendant regarding those letters. 14. I know of no insurance which has been purchased by the defendant for the property." 1. A writ of possession was issued to the plaintiff by this Court on 15 August 2019. 2. When the matter came before me on 5 September 2019, Mr Chan of counsel for the plaintiff informed me that: "This matter is in for assessment of damages for mesne profits. It was from a default judgment. I don't expect the defendant to appear today." 1. In the events that occurred, Mr Chan was correct and the defendant did not appear. Indeed, Mr Chan in due course informed me that even though she had been notified of the plaintiff's intention to proceed to recover monies from her, howsoever described, as claimed in the statement of claim, she had not in fact been informed that the matter was to be heard or that it was to proceed on 5 September 2019. 2. As the transcript will reveal, I became somewhat concerned that the defendant was not present before me and, perhaps more importantly, that she had not responded to the plaintiff's solicitor's letters or taken steps to defend the proceedings. It will be apparent that that concern was generated by the fact that the defendant was the beneficiary of a potentially valuable interest in the property and that the plaintiff had sought and obtained a writ of possession and had threatened to remove her from occupation of the property for what was alleged to be breaches of conditions to which her occupation was said to be subject. Having regard to the fact that I felt that there was a considerable amount of potentially relevant and important information with which I had not been provided, I requested Mr Chan to have his solicitor prepare an affidavit directed to elucidating some of the areas that were of concern to me. 3. The matter returned to me at 2pm. Mr Chan very efficiently provided me with an affidavit affirmed by Louise Abigail Heslop on 5 September 2019. It is important to record some of the helpful matters to which Ms Heslop has deposed: "2. The defendant was personally served with the statement of claim filed 25 March 2019 by way of letter dated 27 March 2019 by process server Debbie Rowley on 2 April 2019… 3. A further letter to the defendant dated 2 May 2019 was personally served on the defendant by way of process server Debbie Rowley on 14 May 2019… 4. On Monday 15 July 2019 my secretary Dianne Pearce informed me that the letter which I signed dated 12 July 2019 notifying the defendant of the listing date for the Notice of Motion Default Judgment on Claim for Possession of Land was mailed to the defendant by her way of Express Post with tracking number XXXX… 5. Although the defendant was notified of the listing date for the Notice of Motion Default Judgment on Claim for Possession of Land and Notice of Motion Writ for Possession of Land, neither of those documents was served on her. I did not do so because Uniform Civil Procedure Rules 2005 16.3(1A)(b) and 39.2(2)(b) apply. 6. On Monday 12 August 2019 my secretary Dianne Pearce informed me that the letter which was signed on my behalf by my employed solicitor Michael Allan Palmer dated 9 August 2019 notifying the defendant that we required access to the property for inspection by a registered valuer was mailed to the defendant by way of Express Post with tracking number XXXX… 7. The affidavit of registered valuer Karen Bates dated 16 August 2019 was personally served on the defendant under cover of letter signed by me dated 21 August 2019, by Toni Louise Ralston, a clerk employed by this firm at around 10.00am on 21 August 2019. On her return to the office Toni said words to me to the effect "I knocked on the door and when she answered it, I said 'Are you Jeanette Belle? To which she replied 'Yes'. I handed her the envelope and said 'You have been served'. She replied, 'Thank you and have a nice day', to which I replied 'Thank you. I will'." On 22 August 2019 my secretary Dianne Pearce informed me that the same letter and affidavit were also posted to the defendant by her by way of Express Post with tracking number XXXX… 8. The defendant was born on XX January 1958, and is presently aged 64 years [sic, 61 years]… 9. I am unaware of the defendant's personal circumstances." 1. UCPR 16.3 provides relevantly as follows: "16.3 Procedure where defendant in default (1) If a defendant is in default, the plaintiff: (a) may apply for judgment to be given under this Part, according to the nature of his or her claim for relief, against the defendant in default, and (b) may carry on the proceedings against any other party to the proceedings. (1A) Unless the court otherwise orders, an application under this rule: (a) may be dealt with in the absence of the parties, and (b) need not be served on the defendant." 1. As presently advised, I am not prepared to proceed further with the plaintiff's application in the absence of the defendant. I am aware that she has failed to respond to any correspondence sent by the plaintiff's solicitor or to any process that has been served upon her. I am however, not able to be satisfied that the defendant's failure to take any steps to protect her position in this litigation is the result of a conscious or informed decision. In the slightly unusual circumstances of this case, therefore, I propose to list the matter before me at a date convenient to the legal representatives of the plaintiff and to require the plaintiff by his solicitor to write to the defendant beforehand in the following terms: "We have been requested by the Supreme Court of New South Wales to advise you that your brother's application, made in his capacity as the Trustee of the Estate of your late mother, to take possession of the property at [insert number] Alfred Street, Cessnock where you reside, has been adjourned to [insert date]. The Supreme Court has published a judgment dealing with the progress of that application so far. A copy of that judgment is enclosed with this letter. You should understand that the Supreme Court may proceed finally to deal with the matter on that day. You are encouraged to attend at that time. However, you should be aware that the Supreme Court may decide to do so in your absence if you are not at court in person or are not represented by a legal practitioner." 1. I will reserve the costs of 5 September 2019. ************* 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: 27 September 2019