Supreme Court New South Wales

• Medium Neutral Citation: Maria Luz Harvey by her tutor Peter David Barton v Maria Luz Barton [2014] NSWSC 1422
• Hearing dates: 15 October 2014
• Decision date: 15 October 2014
• Jurisdiction: Equity Division
• Before: Slattery J

Decision

See paragraph 14.

• Catchwords: PROCEDURE - trustees for sale seek orders that the defendant vacate the property - ordered to be sold - defendant provided medical certificate to excuse non-attendance at hearing - medical certificate insufficient to grant lengthy adjournment - trustees' amended motion adjourned until 27 October 2014.
• Cases Cited: Harvey v Barton [2013] NSWSC 1779
• Category: Procedural and other rulings
• Parties: Applicant: Andrew James Barnden and Geoffrey Philip Reidy as trustees; Plaintiff: Maria Luz Harvey; Respondent/Defendant: Maria Luz Barton
• Representation: Solicitors: Applicant: D. Downey, Downeys Lawyers; Plaintiff: L. Critchley, NSW Legal Aid; Respondent/Defendant: n/a
• File Number(s): 2012/201450
• Publication restriction: No

EX TEMPORE Judgment

1 HIS HONOUR: Listed before the Court today is a motion by trustees, who Justice Robb appointed on 6 December 2013 to sell a property in Woolooware in which the plaintiff and the defendant are interested. The defendant is still in occupation of the property and it has not yet been listed for sale those trustees for sale have not yet sold the subject property. I am told they are attempting to do so. Despite the fact that the orders appointing them as trustees for sale were made some 10 months ago.

2 The trustees, by an amended motion which the Court has given leave for them to file today, seek a variety of orders including: that the defendant vacate those premises; and that an order for possession and writ for possession be issued against her for that purpose.

3 The trustees also seek an increase in the remuneration which they can deduct from the proceeds of sale of the property. The increase in their fees, they say, has been occasioned by unexpected delays they have encountered associated with the sale of the Woolooware property.

4 Mr Downey appears on behalf of the trustees for sale today and Ms Critchley appears on behalf of the plaintiff in the proceedings. The defendant is not before the Court.

5 The origin of this matter is a dispute between a mother and her daughter, respectively the plaintiff and the defendant in these proceedings. As the principal judgment of Justice Robb shows (Harvey v Barton [2013] NSWSC 1779), there was a complex array of issues raised between mother and daughter about the ownership of the Woolooware property, which his Honour resolved by declaring that 35 per cent of that property was held on resulting trust for the plaintiff and the balance for the defendant. His Honour made consequential orders for the appointment of trustees for sale.

6 The matter was listed today so the trustees could move on their motion. The plaintiff does not oppose the trustee's orders, other than to say that any increase in costs above that which was originally estimated by the trustees should be borne by the defendant rather than by the plaintiff. That is not a matter I can decide today. It may not be able to be decided until the property is sold. But the issue will be decided at some stage.

7 The issue today is that the defendant has provided to the Court, by email to my associate, copied to the other parties, a medical certificate under the hand of Dr Patrick Choueifati of 13 October 2014 which provides as follows:

"Medical certificate to the Supreme Court of NSW.

Ms Maria Barton slipped and fell in a store on the 12/10/14. This has resulted in several injuries which were received on her right-hand side affecting her right arm and leg.

At this stage due to her injuries her recovery will take several weeks. She is therefore unable as a result of these injuries to attend Court on 15/10/14.

Thank you,

Yours sincerely

Dr Patrick Choueifati."

8 The defendant's email, to which this medical certificate was attached, was addressed to my associate in the following terms:

"Further to our telephone conversation earlier today regarding my slip and fall on some liquid in a store on Sunday 13 October 2014 and as I am now in excruciating pain and severely bruised and swollen and much worse than yesterday and Sunday.

Please therefore find attached a medical certificate from my doctor as I shall be unable to attend the Supreme Court tomorrow.

Yours sincerely

Maria Luz Barton."

9 Given that the trustees are seeking orders that the defendant vacate the premises, of which I understand she is the sole occupant, I am unwilling to proceed on the motion in her absence today in light of this medical certificate.

10 However, I am disinclined to give the defendant a lengthy adjournment, particularly because of the scanty material provided in this medical certificate. The certificate does not make at all apparent: the extent of the plaintiff's injuries; to what limbs or what part of her body the injuries were suffered; whether or not they were soft tissue injuries; or, whether there were any fractures. Nor is the medical assessment of those injuries sufficiently precise or persuasive for the Court to give any adjournment for more than a few days.

11 Moreover, even if the defendant has suffered such an injury and even if that injury does result in some disability to her, I can infer from the fact that she is able to obtain a medical certificate and transmit it to the Court under cover of the email that she can sufficiently communicate with others at this time that she would probably be capable of instructing lawyers to appear for her. Whether she chooses to do that is a matter for her. But the course I have decided upon is that I will give her a short opportunity to gather her resources and to appear before the Court.

12 I will adjourn these proceedings for hearing before me to 10am on Monday 27 October 2014. It is the Court's intention to proceed with the trustee's motion on that day. Provided there is adequate evidence of service on the defendant of the motion and of affidavits to be relied upon by the trustees, the Court is likely to proceed on the motion on that day whether or not the defendant is present, and in the absence of any legal representation on her part if she chooses not to engage legal representation. Moreover, if the defendant wishes to pursue her notice of motion of 7 October 2014 and rely upon her affidavit of 7 October 2014 she, or her legal representatives, will need to be present on that day, 27 October 2014 to do so. Otherwise her motion may be dismissed.

13 The trustees have indicated that they will rely upon an amended notice of motion which is filed in court today together with the affidavits of Andrew James Barnden of 12 August 2014 and of 10 August 2014 and the affidavit of 14 October 2014 which will hereinafter be referred to in the orders as "the trustee's affidavits". The amended motion will be referred to in the orders as "the trustee's amended motion".

14 I therefore direct and order as follows:

(1) I adjourn the trustees' amended motion for hearing to before me at 10am on Monday 27 October 2014;

(2) I direct the trustees to serve by email and at the address of the Woolooware property the subject of Justice Robb's principal judgment both the amended motion and the trustees' affidavits, by 4pm Friday 18 October 2014, together with a copy of these reasons.

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Decision last updated: 16 October 2014