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Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 73
Supreme Court Act 1970 (NSW), s 75

Cases Cited: Jones v Jones [2024] NSWSC 210
Bobi Damcevski v Emilios Demetriou [2018] NSWSC 988

Category: Procedural rulings

Parties: Dragica Bazika (Plaintiff)
Suzana Bazika (First Defendant)
Jessica Bazika (Second Defendant)
Andrew Shrimpton (Third Defendant)

Representation: Counsel:
J R Young (Plaintiff)
Solicitors:
G&S Law Group (Plaintiff)

File Number(s): 2025/00292845

Publication restriction: Nil

EXTEMPORE JUDGMENT (REVISED)

1. HIS HONOUR: By notice of motion filed on 21 May 2026 the plaintiff seeks various orders, the essence of which are to enforce a settlement agreement previously reached in the substantive proceedings with the first defendant. Those substantive proceedings were commenced on 31 July 2025 when the plaintiff filed a statement of claim against the three defendants seeking, in essence, possession of land, mesne profits and costs.

2. There was no appearance by the first defendant today despite her having been given notice and the matter being called three times outside the courtroom.

3. The background to the matter is that the plaintiff is the registered proprietor of a property in Llandilo identified in par (1) of the statement of claim. The plaintiff occupies a dual occupancy dwelling on the property. Sometime in around 2003 the first defendant, being the plaintiff’s daughter, requested permission from the plaintiff to reside in the separate residence located at the rear of the residence. That request was made on behalf of both the first defendant and the first defendant’s daughter, that being the plaintiff’s granddaughter. On the plaintiff’s case, the first and second defendants were to reside there until the first defendant could purchase a property of her own.

4. In 2018 the plaintiff became aware that the first defendant had purchased a property. Despite having purchased that property, the first and second defendants remained resident at the plaintiff’s property. Some time around 2019, the boyfriend of the second defendant moved into the property, apparently without the consent of the plaintiff. He is the third defendant in the proceedings. In early 2020 the plaintiff demanded the defendants vacate the property. Letters have been sent requesting that they do so from around that time. The defendants refused, or at the least failed, to vacate the property.

5. The plaintiff has, throughout the proceedings, been represented. The three defendants were initially represented by the same solicitor, a notice of appearance having been filed on 24 September 2025. The matter was first before the Court on 28 October 2025 when orders were made for the filing of a defence and a reply to the defence with the matter to return for directions on 9 December 2025.

6. On 2 December 2025 the defendants’ solicitor sent a letter to the solicitors for the plaintiff with an offer to settle the proceedings. The terms of that offer are as follows:

“(a) the Defendants to vacate [X/XXX XXX XXXXXXXX] Road, Llandilo NSW 2747 (Property) on or before 31 March 2026;

(b) the Defendants liable to pay rent to your client to live in the Property from 1 September 2025 until 31 March 2026 or the date that the Defendant’s vacate the Property, whichever is earlier, at a rate of $900 per week;

(c) the Defendants undertake to leave the property in good condition when vacating the Property;

(d) the Proceedings to be discontinued with no order as to costs within 7 days of the deed of settlement;

(e) the parties to enter into a deed of settlement to give effect to the settlement;

(f) the parties to provide mutual releases in relation to or in connection with the matters set out in the Statement of Claim; and

(g) the deed of settlement to contain the normal clauses in relation to non-disparagement and confidentiality.”

7. The offer was indicated in the letter to be open until 16 December 2025. There is no reason to think that that offer was not made on instructions or that the first defendant was not properly advised as to the relative merits of making the offer in those terms.

8. On 8 December 2025 the plaintiff’s solicitors wrote to the defendants’ solicitors accepting the offer. On the same day, 8 December 2025, with the matter due to return to Court the next day, the Court made consent orders adjourning the proceedings to 18 February 2026.

9. Also on 8 December 2025, at 6.10pm, consistent with the negotiations that had taken place, the solicitors for the plaintiff sent a proposed deed of release to the solicitors for the defendants. On 17 February 2026 the defendants’ solicitors wrote to the plaintiff’s solicitors proposing “a two-week adjournment in order to finalise the settlement”.

10. The same day, 17 February 2026, the solicitor for the defendants filed a notice of intention to cease to act in respect of the second and third defendants. The firm remained the solicitor on record for the first defendant. On 20 February, despite the settlement that had been reached, the first defendant filed a defence. In that defence, the first defendant admitted that she was residing in the rear part of the dwelling. Further, she agreed that she had not been paying rent to the plaintiff. She stated that there had been an agreement permitting the first defendant to reside at the property rent free in return for the first defendant contributing to the maintenance and upkeep of the property, and that that agreement was in place from 2004 onwards. In her defence, she stated that the agreement was affirmed by the plaintiff’s conduct whereby the plaintiff continued to permit the first defendant to reside at the property and accepted the benefit of the first defendant’s contributions towards the maintenance and upkeep of the property.

11. It would seem plain that, whatever had been the case, that position had changed well and truly by the time the plaintiff filed her statement of claim in July 2025. It is not without significance that, insofar as the plaintiff seeks to enforce the claim for rent, that claim is only from 1 September 2025, well after the lodging of the statement of claim.

12. The defence further stated that the plaintiff failed to provide a reasonable period of notice to the first defendant as a tenant before notionally re-entering the property and, additionally, that the first defendant is “willing to provide possession of the rear part of the property back to the Plaintiff provided a reasonable period of time is provided to the First Defendant to find alternative accommodation to live, which includes finding suitable alternate accommodation for their horses”. The first defendant denied the plaintiff’s entitlement to costs and mesne profits.

13. I pause to note that, insofar as the first defendant raised the need for a reasonable period of notice, significant time has passed since the filing of the statement of claim and, indeed, since the settlement was accepted, that period being, from the later date, in excess of six months. Despite that, it seems the first defendant has remained in the premises and has made no apparent attempt to remove herself or her belongings from the property.

14. On 11 March 2026 the first defendant’s solicitor filed a notice of ceasing to act with respect to the second and third defendants. On 15 May 2026 the first defendant’s solicitor filed a notice of intention to cease to act with respect to the first defendant. Between those dates, on or around 31 March 2026, the second and third defendants moved out. The plaintiff consequently does not seek to proceed as against them.

15. On 23 April 2026 this Court granted leave for the plaintiff to file and serve a notice of motion seeking orders for judgment or other orders under s 73 of the Civil Procedure Act 2005 (NSW), such leave to be exercised by 29 April 2026.

16. Outside of that date, on 21 May 2026, the plaintiff filed and served her motion with affidavits in support of the plaintiff and the plaintiff’s solicitor. The plaintiff’s affidavit provides evidence as to the reason for the delay leading to the motion being filed and served outside the time in which leave was given. I note the plaintiff is of reasonably advanced years. The affidavit indicates that she was suffering an issue with her health to the extent that it is required. Faulkner J, on 21 May 2026, made orders effectively extending the time within which the motion and supporting evidence could be filed and served. The motion was given a listing date before the registrar of 16 June 2026. On 26 May 2026 the first defendant’s solicitor filed a notice of ceasing to act and provided the first defendant’s email address and home address for service. Before the registrar, on 16 June 2026, there was no appearance by the first defendant. Orders were made setting the matter for hearing on 22 June. Costs were reserved and the registry was to send a copy of orders to the first defendant.

17. I am satisfied the first defendant has had adequate notice of these proceedings. That satisfaction is based on the service of the motion and supporting evidence on her solicitor who was then acting. Further, subsequent to the withdrawal of the first defendant’s solicitor, the orders of the registrar were sent to the first defendant at the address provided by her former solicitors.

18. The plaintiff, as I have indicated, seeks orders pursuant to s 73 of the Civil Procedure Act to, in essence, enforce the settlement reached in December 2025. Section 73 should be read together with the objectives in s 56 of the Civil Procedure Act. The legal principles in relation to s 73, particularly in relation to settlement in writing, were considered by Elkaim AJ in Jones v Jones [2024] NSWSC 210 at [32], where his Honour referred to the reasons of Sackar J in Bobi Damcevski v Emilios Demetriou [2018] NSWSC 988 at [72]-[77]. I adopt his Honour’s observations.

19. It seems in this case that the defendant has, firstly, through her solicitors and on her instructions, entered into an agreement to settle the matter. Despite having done so, the defendant lodged a defence. That defence, on my reading, is not inconsistent with the plaintiff’s entitlement to the property or, indeed, entitlement to rent from at least September 2025. Whether that is so or not is perhaps not to the point given the terms on which the matter had in any event been settled through the correspondence in December 2025. There is nothing to suggest that the offer made by the first defendant did not represent a settlement that was in her best interests. In my view there is no reason why the Court would not make orders enforcing that settlement. Not doing so would be contrary to the objectives of the just, quick and cheap resolution of the matter.

20. I propose to make orders in the form of a declaration with respect to the settlement giving judgment for possession, an order requiring vacant possession and giving leave to the plaintiff to issue a writ of possession. After some discussion, the plaintiff has very reasonably agreed to a period of two weeks whilst seeking only the agreed $900 per week in relation to one week of that time. In those circumstances the appropriate date for vacating the property should be 6 July 2026. The amount payable to the plaintiff on that basis is calculated on the basis of 43 weeks, which would have taken the rental period to Sunday 28 June 2026. That period multiplied by $900, as the amount agreed as weekly rent, results in a total of $38,700. The plaintiff should have an award in that amount.

21. The plaintiff also seeks that the proceedings against the second and third defendants be discontinued. There is no reason not to make that order. The plaintiff, finally, seeks an order for costs against the first defendant. The motion in its terms sought an order for costs from the date of settlement, being 8 December 2025, as agreed or assessed.

22. Before me the plaintiff has sought a fixed sum costs order. There is merit in an appropriate case in making a fixed sum costs order. There is a slight difficulty in the present case as the first defendant was not put on notice of the plaintiff’s intention to seek such an order by the motion itself. In favour of making an order is that, it seems to me, the first defendant would not be prejudiced by such an order and, indeed, it seems to the advantage of all concerned that the matters between the parties be resolved. It should also be noted that in a letter sent by email on 1 April 2026, that is the day after which the defendant had agreed to vacate the property, the plaintiff’s solicitor informed the first defendant’s solicitor, firstly, that the first defendant was in breach of the settlement agreement and, further, that, in the event of failing to comply with the agreement, the plaintiff intended to seek indemnity costs from that date. Despite this, as I have said, the motion in its terms sought only costs as agreed or assessed.

23. Mr Young, who appears for the plaintiff, has made the eminently reasonable suggestion that, in the circumstances, the Court could make a fixed sum costs order, but grant leave to the first defendant to apply for a contrary order within a set period. I propose to make such an order granting the first defendant 14 days. With respect to the costs themselves, the plaintiff’s solicitor, Mr Elee Georges, has, in his affidavit of 19 June 2026, set out his experience and the basis for the amount that is sought. He indicates that he has been a solicitor for over 20 years with experience in excess of 100 costs assessments. Since 8 December 2025 the costs incurred by the plaintiff total $43,700. Mr Georges states in his affidavit that on a party/party basis an assessor would allow 75% of the costs, being an amount of $32,775. He further observes that, in his experience, a costs assessment would incur further costs for the plaintiff in the order of about $5,000 and would take some three to six months, underscoring the desirability of a fixed sum costs order. I note the affidavit annexed the various invoices setting out the costs incurred. Based on Mr Georges’ affidavit, the appropriate figure for a fixed sum costs order would be $32,775.

24. I make the following orders:

25. Pursuant to s 75 of the Supreme Court Act 1970 (NSW), I make a declaration that the parties entered into an agreement to settle these proceedings in the terms set out in the letter from Fast Track Legal Group dated 2 December 2025 and accepted on 8 December 2025 (the settlement).

26. Judgment for possession of the property at X/XXX XXX XXXXXXXX Road, Llandilo, NSW 2747, being part Lot XX in DPXXXXXX (the plaintiff's property) for the plaintiff on and from 6 July 2026.

27. Order that the first defendant vacate the plaintiff's property and give vacant possession of the plaintiff's property on 6 July 2026.

28. Grant leave to the plaintiff to issue a writ of possession on terms that the writ of possession is to lie in the Registry and not be exercised until 14 days after 22 June 2026.

29. The first defendant is to pay to the plaintiff the sum of $38,700.

30. The first defendant is to pay the plaintiff's costs in the amount of $32,775.

31. The proceedings against the second and third defendants is discontinued in accordance with the notice of discontinuance on 3 June 2026.

32. Leave is granted to the first defendant to apply for variation of the costs order within 14 days of the date of this judgment.

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