Marina Blue Pty Limited v Gear

1. [1]

   HER HONOUR: By notice of motion filed 21 March 2018 the plaintiff seeks an order that firstly, the defence filed 12 March 2018 be struck out pursuant to rule 13.1 or rule 14.15(3) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”); secondly, judgment for the plaintiff for possession of the land comprised in Certificate of Title Folio Identifier 3/XXXXX being the land situated at and known as XX Wartlers Street, Port Macquarie (“the property”); and thirdly, leave to issue a writ of possession.

2. [2]

   The plaintiff is Marina Blue Pty Limited (“Marina Blue”). The defendant is Trevor Gear. Marina Blue relied upon the affidavit of Graeme Robert Jensen dated 21 March 2018.

3. [3]

   By statement of claim filed 11 October 2017, Marina Blue alleges that it is the registered proprietor of the property and the defendant is, and at all times, has been in possession of and has occupied the property without the authority of Marina Blue. Marina Blue has requested the defendant to vacate the property and the defendant has refused to do so. The defendant has not paid rent to Marina Blue in respect of his occupation nor is his occupation of the property subject to the Residential Tenancies Act 2010 (NSW).

4. [4]

   The defence is a bit of a mixed document. The defendant admits that he has been in possession of the property and that he has been requested to vacate it and has refused to do so. He admits that Marina Blue is registered but it was reregistered after being deregistered in 2011 by ASIC and he intends to show that this should not have occurred. The defendant disputes the fact that he is not subject to the Residential Tenancies Act. He intends to defend the matter on many grounds and with the information and advice from many government agencies, including ASIC. He intends to prove that no-one has more of a right to the property than the defendant.

5. [5]

   The defendant seeks an adjournment today. He has had some legal representation in the past but appears today unrepresented. He has been residing in the subject property for at least seven years, so it can hardly be said that the finalisation of this case is urgent. The defendant made an application for possessory title and, when he got to the final stage of advertising in the newspapers that he had applied for adverse possession, Marina Blue came back onto the scene.

6. [6]

   It is true that Marina Blue had been deregistered on 12 June 2011 and on 17 July 2017 it was reinstated. The effect of the reinstatement is, as said in the letter from ASIC, that Marina Blue is taken to have continued in existence as if it had not been deregistered. A person who was a director of the company immediately before deregistration becomes a director again as from the time when ASIC or the Court reinstates the company, subject to any change notified at the time of reinstatement.

7. [7]

   Any property of Marina Blue (including that which is the subject property at Port Macquarie) which was vested in ASIC or in the Commonwealth as a result of the company’s deregistration, reinvests in the company. There has been a change of directors and I note that, as at 20 March 2018, a Land Titles search shows that there were no unregistered dealings on title. The address of the director is shown to be the property next door. Yet it is the defendant’s observation that he (the director) does not in fact reside there.

8. [8]

   While I accept that it is quite difficult to go behind these documents, it seems to me that the defendant has been in possession of the property for seven years. He seeks a further opportunity to investigate his rights to possessory title.

9. [9]

   The law is set out in ss 56, 57, 58 and 66 of the Civil Procedure Act 2005 (NSW) and the guiding cases of Hamod v State of New South Wales [2011] NSWCA 375 and Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175.

The legal principles in relation to adjournments

1. [10]

   Sections 56, 57 58 and 66 of the Civil Procedure Act 2005 relevantly read:

2. [11]

   In Hamod v State of New South Wales [2011] NSWCA 375, the Court of Appeal reviewed the principles to be considered in deciding whether an adjournment should be granted. The trial judge had refused an adjournment by a self-represented litigant part way through the hearing.

3. [12]

   The Court of Appeal in that case referred to Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175. Their Honours stated at [139] to [145]:

4. [13]

   It is my view, that if I were to grant the adjournment it would need to be for a period of at least two months taking into account that the defendant was notified that his application for adverse possession was rejected in March 2018, which is only some six weeks ago. What he wants to do is to take up the change in directors and the reregistration of the company with ASIC, he wants to remove the caveat and continue with his application for adverse possession.

5. [14]

   In these circumstances, where the defendant has been in possession of the property and Marina Blue was deregistered for years and did nothing, and where the defendant has only just been told that his adverse possession application has been rejected, I intend to allow him some time to investigate whether he can in fact get any legal relief. He should be given this opportunity before his defence is struck out.

6. [15]

   What I propose to do is to stand the matter over for two months and list it for hearing before myself. I intend to proceed on the next occasion unless the defendant can demonstrate to me that he is well-advanced in gaining adverse possession.