Perpetual Corporate Trust Limited (ACN 001 341 533) v Adgemis

HIS HONOUR: The first defendant, Rose Adgemis, by Motion, notice of which was filed on 4 April 2025, moved the Court to issue orders prohibiting the Sheriff from taking action on a writ of possession issued on 10 January 2025, the effect of which would be to obtain possession of the property known as 2A Conway Avenue, Rose Bay in the State of New South Wales in which the first defendant’s daughter, son-in-law and grandson live. The motion is supported by an affidavit sworn on the same date.

The applicant on the motion, being the first defendant in the substantive proceedings, attests to the fact that other property is owned by her in an adjoining? neighbourhood. The first defendant lives on her own in the other property. The title search is annexed to the affidavit.

The first defendant is, according to the Title Deeds, joint tenant of the property at 2A Conway Avenue together with her son, Jon. Neither of them lives in the property. As earlier stated, along with her daughter and son-in-law, her grandson, Jack, lives at 2A Conway Avenue, Rose Bay (hereinafter the “disputed property”). The title search of the disputed property is before the Court.

Jack is severely disabled and requires full-time care. The disputed property has been modified for his requirements.

Jack is currently 24 years of age, has ADS (Autism Spectrum Disorder), a profound intellectual disability and, as stated, requires full-time care to manage, amongst other things, his behavioural issues, intellectual impairment, complex drug-resistant epilepsy and tuberous sclerosis, which is a rare genetic disease causing non-cancerous tumours to grow in the brain and other organs. There is not currently medical evidence in relation to this issue in detail but there is a medical history and report from a medical practitioner who has treated Jack and, for the purposes of these interlocutory proceedings only, I accept the statement of the first defendant as to the health of her grandson.

Jack attends Giant Steps, a school for children with disabilities, twice weekly. A report confirms those issues.

The first defendant has her own health conditions and was scheduled for an operation for surgical removal of a lesion suspected of being cancerous. The first defendant’s daughter also has health issues some of which are seemingly caused by the effect of being a full-time carer to Jack. The daughter suffers from anxiety, depression and panic attacks. Apart from those, the daughter also suffers from asthma and IBS.

The affidavit from which the foregoing is obtained also deals with the first defendant’s awareness, or lack of it, of the proceedings for possession. The first defendant gives evidence that she does not recall and has no record of ever receiving the Statement of Claim in relation to the substantive proceedings.

Apparently, in the substantive proceedings, a law firm acted for the first defendant. The first defendant denies having ever spoken to any lawyer from the firm in question.

In essence, the first defendant seeks to file a defence to the proceedings and set aside the default judgment, at least as against her, and does so for reasons which can be broadly described, without any criticism of any party, as being related to the circumstance that her son, the second defendant and joint owner of the disputed property, conducted all of the meetings and arrangements in relation to the property and mortgage, none of which seems to have been explained or adequately explained to the first defendant. This is the claim of the first defendant.

A cross-claim alleging unconscionable conduct under ss 12A and 12CB of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) was filed on 23 April 2025. The cross-claim also seeks a restraining order under the ASIC Act and under general law, orders for the removal of the registered mortgage upon which the plaintiff in the substantive proceedings moves, and orders under the Contracts Review Act 1980 (NSW).

The matter came on urgently before the Court as presently constituted acting as Duty Judge. Prima facie, the plaintiff in the substantive proceedings has a right to possession on the basis of the default on the mortgage. The plaintiff is not the only mortgagee on the disputed property.

During the course of the proceedings, the Court enquired as to the presence of the occupiers of the property. They were not present in Court. A notice, pursuant to the Practice Note and the Uniform Civil Procedure Rules 2005 (NSW), had been served on the occupiers, addressed “to the occupier”. The only parties to the proceedings are the registered joint owners of the property, the first and second defendants.

There is no evidence before the Court as to the arrangements between the defendants in these proceedings and the occupiers. It seems, from information from the bar table, or the lack of it, that there is no lease or rental agreement. As earlier stated, the property has been modified substantially to accommodate the needs of Jack.

Jack, as is obvious from that which has already been stated, is and would have been unable to understand any notice to the occupier and, without in any way criticising the plaintiff, only one notice to the occupier was served.

Thus, albeit very much at the interlocutory stage and on the basis of the preliminary material before the Court, the Court was faced with the following issues:

There are a number of issues that arise. First, it is necessary to set out the principles associated with a stay of execution of a writ of possession. The most convenient summary is that of Johnson J in GE Personal Finance Pty Ltd. [1] His Honour, then the possession list judge, set out the bases upon which a stay application may be made and granted. His Honour said:

On one view, it may be that the first defendant has a reasonable defence. Further, at least arguably, because the second defendant has purported to mortgage the property without the knowledge of the first defendant and without her authority, there may be a severance of the joint tenancy and the creation of a tenancy in common, allowing the plaintiff to enforce the debt against the interest only of the tenant in common: Guthrie v ANZ Banking Group Ltd. [2]

If the factual circumstance is as pleaded by the first defendant, then the first defendant fits within the first category or basis upon which the default judgment may be set aside and a stay granted. It is unnecessary for the Court to determine such an issue finally or at all.

That which concerns the Court, as presently constituted, far more is the hardship issue associated with Jack. Not only is there an issue of hardship but, given the circumstances of the occupation of the property and the identity of the registered owners, there may well be an argument that the beneficial ownership of the property or some equitable title or equity is held by Jack.

The difficulty with such a proposition is that such an interest is inconsistent with the financial interests of the first and/or second defendants and may well be inconsistent with the interests of the other occupiers of the disputed property or at least the mother. It may well be that for a variety of family reasons, Jack’s mother, being the daughter of the first defendant, would not seek to deprive the first defendant and/or the second defendant of their interests in the property.

Further, the notice to the occupier, which was served, appropriately, by the plaintiffs, would not have come to the attention of Jack and, even if it were to have come to his attention, he could not, on the material currently before the Court, have understood it.

If, as is a real possibility, the joint tenants were holding the property in trust for Jack, the first defendant’s grandson, and his parents, then the second defendant also acted in breach of trust, but, more importantly from the perspective of these proceedings, Jack would need to be represented by a tutor and his interest asserted.

Such an interest would not have priority over the registered interests of the plaintiff, but in circumstances where there is an occupier with an intellectual disability of this magnitude, the requirements of UCPR r 16.4(3)(a) and (b) together with the terms of UCPR r 6.8(1) may mandate different action.

As earlier stated, it is unnecessary for the Court, in the present application, to decide or determine these more complicated issues. It was sufficient for present purposes to show that there was, at a very preliminary stage, an arguable defence by the first defendant and real hardship seemingly suffered by Jack. It was the hardship that was the basis for the temporary order granted on 23 April 2025.

It is for the foregoing reasons that the Court issued the orders on 23 April 2025 staying execution of the writ of possession granted on 10 January 2025.