Jennings v Jennings

The plaintiff commenced proceedings on 26 April 2019 seeking possession of land. The land was owned by her but occupied by persons who were alleged not to have her consent to occupy.

The plaintiff commenced the proceedings by her tutor the NSW Trustee and Guardian. It appears to be the case that the background is that the plaintiff had been placed under the care of the NSW Trustee and Guardian, and the defendants are family members who are in occupation of the property. The statement of claim discloses that the NSW Trustee and Guardian decided to sell the property. The need to do so frequently arises in these sorts of cases so that the NSW Trustee and Guardian can pay costs associated with the ongoing care of a person in the position of the plaintiff. The decision to sell was, at the request of the defendants, reviewed by an Internal Reviewer at the request of the defendants, and the decision was upheld by the Internal Reviewer. No further appeal to NCAT has been pursued by the defendants against that decision.

On 3 June 2019 a Notice of Discontinuance was filed. The Notice provided as follows:

The Notice disclosed further that it was a term of the discontinuance that there be no order as to costs. The Notice was executed by the solicitor for the plaintiff and the solicitor for the defendants.

An issue has arisen about whether the proceedings should be discontinued in the absence of the Court’s approval of that discontinuance.

Section 76 of the Civil Procedure Act 2005 (NSW) relevantly provides:

In my opinion, s 76 requires the approval of the Court for the discontinuance of the proceedings. It is a reasonable inference from the terms of the Notice of Discontinuance and the process which followed the decision of the NSW Trustee and Guardian to sell the property that there has been a settlement of the proceedings. It may be inferred that an agreement was reached whereby the plaintiff was to recover possession with each party paying their own costs. Accordingly, there is a compromise or settlement of the proceedings where a person under a legal incapacity is a party to those proceedings.

The settlement should be approved on the basis that the plaintiff has obtained the principal relief sought by her in the statement of claim. Any liability for the plaintiff’s costs up to the date of the filing of the Notice of Discontinuance must be weighed against the alternative likelihood that, if the proceedings had not settled at this point, considerably greater costs would have been incurred by the plaintiff, not all of which would be recoverable.

In those circumstances, the settlement is approved. The plaintiff is given leave to discontinue the proceedings.