Before me as Duty Judge is a notice of motion brought by the plaintiff in these proceedings. The respondent to the motion is the defendant in the substantive proceedings. In this judgment, I will refer to the parties by their titles in the substantive proceedings, that is the plaintiff and the defendant.
By notice of motion filed on 2 June 2023 the plaintiff seeks:-
1. default judgment on a claim for possession of specified land;
2. judgment for the plaintiff against the defendant for $44,000 in mesne profits;
3. a declaration that the defendant has no right to enter, occupy, or remain upon the land;
4. an order that the defendant be restrained from interfering upon or taking possession of the land;
5. leave to issue a writ for possession of the land; and
6. an order for costs.
Mr Morris SC, who appears for the plaintiff, concedes that the order sought for judgment in the amount of $44,000 cannot be made today as the mesne profits cannot be ascertained until the plaintiff is in possession of the land. He seeks all other orders.
The circumstances in which the motion is before the Court are as follows. The plaintiff filed a Statement of Claim on 4 May 2023. The defendant did not file an Appearance and no steps were taken by him to file a Defence. Consequently, the notice of motion was filed, effectively seeking the relief sought in the Statement of Claim. The matter came before his Honour Justice Dhanji on 19 July 2023: see Terabond Pty Limited v Tsilfidis [2023] NSWSC 851. Initially there was no appearance by the defendant. The matter proceeded, and evidence was tendered. After some time, the defendant did appear and (in effect) sought an adjournment so that he could obtain legal representation. His Honour reluctantly granted the adjournment, and he advised the plaintiff to deal expeditiously with the matter before the Court or suffer the consequences. The matter was relisted before the Registrar.
The defendant attended a directions hearing in person on 26 July 2023 before Senior Deputy Registrar Hedge, who made orders that the defendant file and serve evidence on the default judgment motion by 10 August 2023. On 28 July 2023 the defendant filed a handwritten Notice of Appearance, but a copy was not served on the plaintiff. The defendant has filed no evidence. He has not filed a Defence. He was called outside the courtroom today on two occasions (at about 10.05 am and at about 10.40 am) but he did not appear. He is aware of the proceedings today, as he was informed of today's date on 26 July 2023 by Senior Deputy Registrar Hedge. There has also been copious correspondence from the plaintiff's solicitors to the defendant reminding him of the hearing of the notice of motion.
The background to this matter is set out in the evidence filed by the plaintiff and which is contained in exhibits A and B. There is a great deal of material before the Court which consists of 19 affidavits which were read and are in three court book volumes. The evidence discloses that on 6 December 2019, a contract for the sale and purchase of land at Dulwich Hill was executed by the plaintiff as purchaser and the defendant as vendor for the price of $1,050,000. The subject land contains buildings used as residential premises. On 12 June 2020, settlement was completed, and on 20 June 2020, the plaintiff was registered on title as the owner of the land. The plaintiff purchased the property with the intention of redeveloping the land, and in June 2020, it was anticipated that the existing buildings would be demolished.
Amongst the many affidavits is one of Gregory Gav sworn on 28 June 2023. Mr Gav is the sole director, secretary, and shareholder of the plaintiff company. He deposes to a conversation with the defendant on 12 June 2020 in which he agreed to the defendant living in the property free of charge without payment of rent, bills or expenses for about three months, but in any event until such time as he asked the defendant to leave the property. Thus there was an oral agreement between the plaintiff and the defendant permitting the defendant to occupy the premises for a period of three months for no payment at all. The defendant remained in occupation after settlement.
In early 2021, the plaintiff began to take steps to develop the property and on 19 March 2021 served a notice to vacate on the defendant. The defendant remained in occupation. On 14 April 2021, a further notice to vacate was served on the defendant. The plaintiff changed the locks on 30 April 2021. Unbeknownst to the plaintiff, the defendant re-entered the premises without the plaintiff's permission and reoccupied the premises after the locks were changed.
Another notice to vacate was served on the defendant on 28 April 2023. He still remained in occupation. On 4 May 2023 the plaintiff filed a Statement of Claim seeking possession of the property and other orders. The notice of motion before the court was filed on 2 June 2023. Lest there be any question about service upon the defendant of the Statement of Claim, the notice of motion and the affidavits upon which the plaintiff relies today, which are contained in volumes 1 and 2 of exhibit A and exhibit B, the affidavits clearly demonstrate that the defendant has been served with each and every document that is before the court today. Furthermore, the defendant was present before Dhanji J on the last occasion and is aware of the proceedings and the evidence which has been prepared for the purposes of today's notice of motion. He attended the call over before Senior Deputy Registrar Hedge on 26 July 2023 and is aware that if he wishes to defend the proceedings that he must appear and put on evidence.
As a matter of caution, Mr Morris pointed out to me that the oral agreement by which the defendant occupied the land was not an agreement with respect to a residential tenancy. Section 13 of the Residential Tenancies Act 2010 is as follows:
13 Agreements that are residential tenancy agreements
(1) A residential tenancy agreement is an agreement under which a person grants to another person for value a right of occupation of residential premises for the purpose of use as a residence.
(2) A residential tenancy agreement may be express or implied and may be oral or in writing, or partly oral and partly in writing.
(3) An agreement may be a residential tenancy agreement for the purposes of this Act even though -
(a) it does not grant a right of exclusive occupation, or
(b) it grants the right to occupy residential premises together with the letting of goods or the provision of services or facilities.
(4) For the purpose of determining whether an agreement is a residential tenancy agreement, it does not matter that the person granted the right of occupation is a corporation if the premises are used (or intended for use) as a residence by a natural person.
The agreement pursuant to which the defendant occupied the land was not one in which a person granted to another person a right of occupation for value. There was never any payment whatsoever, and in my view it is not arguable that the agreement falls within the Residential Tenancies Act: see Case v Frimont [2021] NSWCA 30; Cross v Cross-Boyd [2021] NSWSC 977 and Elddin v Hamed (No 2) [2015] NSWSC 654. This is of importance as it permits the plaintiff to commence and continue these proceedings in this Court, rather than the Civil and Administrative Tribunal.
To succeed on this application the plaintiff must satisfy several matters that are contained in the Uniform Civil Procedure Rules 2005 (the Rules). Rule 16.4 provides:-
16.4 Default judgment on claim for possession of land
(1) Subject to rule 36.8, if the plaintiff's claim against a defendant in default is for possession of land only, judgment may be given for the plaintiff for possession of land, as against the defendant, and for costs.
(2) If, before judgment is given, any person files notice of motion for the person's addition as a defendant, judgment may not be given under this rule until the motion is disposed of.
(3) The relevant affidavit in support -
(a) must identify any persons (other than parties to the proceedings) who were in occupation of the whole or any part of the land -
(i) as at the time the originating process was filed, or
(ii) if the claim for possession arises from an amendment to the originating process, as at the time the amendment was made,
and, if any such person was in occupation of the land pursuant to a right of occupation under a residential tenancy agreement within the meaning of the Residential Tenancies Act 2010, must contain a statement to that effect, and
(b) in relation to each such person -
(i) must state that the person's occupation of the land is not to be disturbed, or
(ii) must state that the person is no longer in occupation of any part of the land, or
(iii) must state that the person has been served with a notice pursuant to rule 6.8 and that the time allowed for the person to apply to the court to be joined as a defendant has now passed,
as the case requires, and
(c) if the claim for possession of the land arises from a default in the payment of money, must give particulars of the default (including any payments made to date to reduce the amount owing and the current amount owing taking into account any such payments), and
(d) must state the source of the deponent's knowledge of the matters stated in the affidavit concerning the occupation of the land and any default in the payment of money referred to in paragraph (c), and
(e) must state whether costs are claimed and, if so, how much is claimed for costs, indicating -
(i) how much is claimed on account of professional costs (not exceeding the amount fixed by the regulations made for the purposes of section 59 of the Legal Profession Uniform Law Application Act 2014), and
(ii) how much is claimed on account of filing fees, and
(iii) how much is claimed on account of the costs of serving the originating process, and
(f) must state when and how the originating process was served on the defendant.
(4) A reference in this rule to a residential tenancy agreement within the meaning of the Residential Tenancies Act 2010 is taken to include a reference to a residential tenancy agreement within the meaning of the Residential Tenancies Act 1987 as in force before its repeal.
In accordance with rule 16.4(3), I observe that the affidavits of Mr Gav and Mr Karakikes, the latter of which was sworn on 25 July 2023, indicate that no person other than the defendant occupied the whole or any part of the land at the time of the originating process and at the time the claim for possession arose. The history of the matter is set out in the affidavit of Mr Gav: r 16.4(3)(d). The requirements of r 16.4(3)(e) with respect to costs are set out at length in the affidavit of Mr Kadar sworn on 21 August 2023. Service of the originating process and the motion are set out in the affidavit of Mr Jordan sworn on 4 July 2023 (and others): r 16.4(3)(f). In my opinion the evidence establishes that all the prerequisites of r 16.4 have been satisfied.
Rule 6.8A provides:-
6.8A Originating process for proceedings to be entered in Possession List
The originating process in proceedings in the Common Law Division of the Supreme Court that are to be entered in The Possession List is to have a coversheet in the approved form.
Before me, as MFI 2, is Form 93 which is the prescribed form pursuant to rule 6.8A. That document is titled "Possession of Land Coversheet" and is in 17 languages. It says the following:
"ENGLISH. This is an IMPORTANT NOTICE issued by Supreme Court of NSW. If you do not respond to this Statement of Claim you may be evicted from your property and the lender may take action to sell your property. You have 28 DAYS ONLY from the date you receive this document to file a defence in the Supreme Court. You may need legal advice. If you want free legal information or referral for further assistance you may ring Law Access NSW on 1300 888 529 from anywhere in New South Wales for the cost of a local call. If you need the assistance of an interpreter you may ring the free Translating and Interpreting Service now on 1300 131 450 and ask them to call Law Access NSW. Law Access is a joint initiative of the Attorney General's Department of New South Wales and Legal Aid New South Wales."
Mr Morris conceded that the defendant has never been served with a Form 93. However, the substance of the information that is contained in Form 93 was conveyed to the defendant by Dhanji J on 19 July 2023. It can be inferred from the defendant's filing of a Notice of Appearance and his appearance before Senior Deputy Registrar Hedge that he is aware of the consequences of his failure to meet the motion by the service of evidence or at least by appearing before the Court. To extent that it is necessary, I dispense with the requirement for the service of Form 93 by the plaintiff upon the defendant pursuant to s 14 of the Civil Procedure Act 2005 (CPA).
I turn now to r 36.8. That rule, which applies to the possession of land, reads as follows:
36.8 Possession of land
(1) Unless the court orders otherwise, judgment for possession of land may not be given or entered against a defendant in his or her absence unless the plaintiff files an affidavit -
(a) stating that, when the originating process was filed or (if the claim for possession arises from an amendment to the originating process) when the amendment was made -
(i) specified persons (other than parties to the proceedings) had been in occupation of the whole or any part of the land, or
(ii) no persons (other than parties to the proceedings) had been in occupation of the whole or any part of the land, and
(b) stating that, as to each person specified in accordance with paragraph (a)(i) (other than a person whose occupation the plaintiff does not seek to disturb) -
(i) the originating process has been duly served on the person, or
(ii) the person has, since the time referred to in paragraph (a), ceased to be in occupation of any part of the land, and
(c) in relation to a claim for possession by reason of default in the payment of money, stating particulars of the default.
(2) This rule does not apply to the registration of a judgment for possession of land given by a court of the Commonwealth or another State or Territory.
So far as r 36.8 is concerned, the affidavits in exhibit B satisfy me of the matters in r 36.8(1)(a) which is of relevance in these circumstances.
As to the circumstances in which the issue of the writ requires leave, r 39.1 relevantly provides:
(1) A writ of execution may not be issued in the following circumstances except by leave of the court:
…
(d) if the writ is a writ for the possession of land.
The plaintiff seeks a writ for the possession of land. Rule 39.1(2) and (3) provide:
(2) If leave is required it may be applied for in the notice of motion for the issue of the writ of execution.
(3) The motion for leave must be supported by the following evidence;
(a) evidence that the applicant is entitled to proceed to execution on the judgment,
(b) evidence that the person against whom execution is sought to be issued is liable to execution on the judgment,
(c) if the judgment is for the payment of money, evidence as to the amount due on the date of the motion;
(d) if subrule (1)(a) applies, evidence as to the change which has taken place,
(e) if subrule (1)(b) or (c) applies, evidence that a demand to satisfy the judgment has been made on the person liable to satisfy it and that the person has not satisfied it.
In these proceedings the plaintiff has satisfied both subrules (3)(a) and (b) by the evidence of Mr Gav, who has deposed that the plaintiff is entitled to proceed to execution on the judgment, and that the defendant against whom the execution is sought is liable to execution on the judgment. I therefore grant the plaintiff leave.
The plaintiff seeks costs in a specified sum. They are set out in the affidavit of Mr Kadar sworn on 21 August 2023. There is no doubt that the power of the Court in s 98 of the Civil Procedure Act 2005 permits me to order a specified sum instead of ordering that costs be agreed or assessed. An assessment of costs is a significant legal right. In the circumstances of this case, and in particular because the defendant is absent, I am disinclined to make an order for costs in a specified sum.
Taking all matters into account, and noting the great effort to which the plaintiff has gone in preparing this matter, I make the following orders:-
1. Judgment for the plaintiff for possession of the land comprised in folio identifier 1/1285157 being the land situate at and known as 873-879 New Canterbury Road, Dulwich Hill, NSW, 2203.
2. Declare that the defendant has no right to enter, occupy, or remain upon the land comprised in folio identifier 1/1285157 being the land situate at and known as 873-879 New Canterbury Road, Dulwich Hill, NSW, 2203.
3. Order that the defendant be restrained from interfering upon or taking possession of the land comprised in folio identifier 1/1285157 being the land situate at and known as 873-879 New Canterbury Road, Dulwich Hill, NSW, 2203.
4. Leave to issue a writ for possession of the land comprised in folio identifier 1/1285157 being the land situate at and known as 873-879 New Canterbury Road, Dulwich Hill, NSW, 2203.
5. The defendant is to pay the plaintiff's cost as agreed or assessed.
6. I stand that part of the plaintiff's claim against the defendant for mesne profits before the Registrar on Tuesday 29 August 2023.
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Decision last updated: 29 August 2023