Secure Funding Pty Ltd v Mears [2023] NSWSC 217

Secure Funding Pty Ltd v Mears [2023] NSWSC 217

Because Gregory Ross Mears had died before the proceedings commenced, the plaintiff was unaware of his death, and searches indicated that no probate or letters of administration had been applied for or granted, the NSW Trustee and Guardian was the proper defendant for the possession claim and should be substituted for Mr Mears. The plaintiff should also be permitted to amend and serve the statement of claim to reflect that substitution.

Jurisdiction
Australia
Judgment Date
15 March 2023
Procedural Posture
Possession Proceedings / Notice of Motion for Substitution of Party and Leave to Amend Statement of Claim
Outcome
Leave granted; NSW Trustee & Guardian substituted as first defendant; leave granted to amend the statement of claim; service and relisting directions made.
Legal Topics
['possession Proceedings' 'joinder and Substitution of Parties' 'deceased Defendant' 'amendment of Statement of Claim' 'nsw Trustee and Guardian']
['civil Procedure' 'property Law'] ['possession Proceedings' 'joinder and Substitution of Parties' 'deceased Defendant' 'amendment of Statement of Claim' 'nsw Trustee and Guardian']

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Procedural Posture

Possession Proceedings / Notice of Motion for Substitution of Party and Leave to Amend Statement of Claim

Legal Issues

  1. 1 ['Whether leave should be granted to the plaintiff to file a notice of motion nunc pro tunc.' 'Whether the NSW Trustee & Guardian should be substituted for Gregory Ross Mears as first defendant where Mr Mears had died before proceedings commenced and no administration of his estate had been applied for.' 'Whether the plaintiff should be granted leave to amend the statement of claim to reflect the substitution of the first defendant.']

Ratio Decidendi

Because Gregory Ross Mears had died before the proceedings commenced, the plaintiff was unaware of his death, and searches indicated that no probate or letters of administration had been applied for or granted, the NSW Trustee and Guardian was the proper defendant for the possession claim and should be substituted for Mr Mears. The plaintiff should also be permitted to amend and serve the statement of claim to reflect that substitution.

Court Disposition

Leave granted; NSW Trustee & Guardian substituted as first defendant; leave granted to amend the statement of claim; service and relisting directions made.

Orders

  • ['Leave to plaintiff to file Notice of Motion dated 6 December 2022 nunc pro tunc.' 'Pursuant to Rules 6.24, 6.29 and 6.32(1)(d) of the Uniform Civil Procedure Rules 2005 (NSW), the NSW Trustee & Guardian be substituted for Gregory Ross Mears as first defendant in this proceeding.' 'Pursuant to section 64 of Civil...