Secure Funding Pty Ltd v Johnson [2023] NSWSC 312

Secure Funding Pty Ltd v Johnson [2023] NSWSC 312

Because Dianne Ruby Johnson, the sole registered proprietor of the property, had died before the possession proceedings were commenced and no application for probate had been filed, the NSW Trustee and Guardian was a proper and necessary party in respect of the plaintiff's claim for possession of the land, and it was appropriate to substitute it as first defendant and grant leave to amend the statement of claim.

Jurisdiction
Australia
Judgment Date
06 April 2023
Procedural Posture
Possession Proceedings / Notice of Motion Seeking Substitution of NSW Trustee and Guardian for Deceased First Defendant and Leave to Amend Statement of Claim
Outcome
Leave granted; NSW Trustee and Guardian substituted for Dianne Ruby Johnson as first defendant; leave granted to amend statement of claim; proceedings adjourned.
Legal Topics
['possession Proceedings' 'substitution of Parties' 'deceased Mortgagor' 'leave to Amend' 'nsw Trustee and Guardian']
['civil Procedure' 'property Law'] ['possession Proceedings' 'substitution of Parties' 'deceased Mortgagor' 'leave to Amend' 'nsw Trustee and Guardian']

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Procedural Posture

Possession Proceedings / Notice of Motion Seeking Substitution of NSW Trustee and Guardian for Deceased First Defendant 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 filed on 6 December 2022 nunc pro tunc.' 'Whether the NSW Trustee and Guardian should be substituted for Dianne Ruby Johnson as first defendant where she had died before commencement of possession proceedings and no application for probate had been filed.' 'Whether the plaintiff should be granted leave to amend the statement of claim to substitute the NSW Trustee and Guardian as first defendant.']

Ratio Decidendi

Because Dianne Ruby Johnson, the sole registered proprietor of the property, had died before the possession proceedings were commenced and no application for probate had been filed, the NSW Trustee and Guardian was a proper and necessary party in respect of the plaintiff's claim for possession of the land, and it was appropriate to substitute it as first defendant and grant leave to amend the statement of claim.

Court Disposition

Leave granted; NSW Trustee and Guardian substituted for Dianne Ruby Johnson as first defendant; leave granted to amend statement of claim; proceedings adjourned.

Orders

  • ['Grant leave to the plaintiff to file a notice of motion filed on 6 December 2022 nunc pro tunc.' 'Order that pursuant to Rule 6.24, 6.29 and 6.32 (1d) of the Uniform Civil Procedure Rules 2005 (NSW) the NSW Trustee and Guardian be substituted for Dianne Ruby Johnson as first defendant in this proceeding.' 'An...