Wilnet Pty Ltd v Smart Laundry Manager Pty Ltd (No 2)

Hearing dates: 31 August 2026–1 September 2026

Date of orders: 21 October 2026

Decision date: 21 October 2026

Jurisdiction: Common Law

Before: Sirtes J

Decision: See [229]–[230]

Catchwords: REAL PROPERTY – possession of land – registered proprietor – Torrens title – indefeasibility – exceptions for tenancies of which registered proprietor had notice – where occupier asserted agreement with previous proprietor for fixed term lease – where occupier asserted in personam exception – no fixed term lease – no in personam exception
CIVIL PROCEDURE – conduct of proceedings – multiple applications for adjournment – medical grounds – application refused – application to reopen – no basis for reopening – application refused

Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56–58, 66, 67, 98, 100
Conveyancing Act 1919 (NSW), ss 54A, 127
Evidence Act 1995 (NSW), ss 59, 63, 64
Real Property Act 1900 (NSW), ss 42, 43

Cases Cited: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Arnold v Mann (1957) 99 CLR 462
Ausbao (286 Sussex Street) Pty Ltd v The Registrar-General of New South Wales [2023] NSWCA 18
Banque Commerciale v Akhil Holdings Ltd (1990) 169 CLR 279
Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622
Bobolas v Waverley Council (2016) 92 NSWLR 406; [2016] NSWCA 139
Duraisamy v Sydney Trains [2019] NSWCA 269
Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
Fareham Borough Council v Miller [2013] EWCA Civ 159
Freeman v Evans [1922] 1 Ch 36
Gemi Nominees Pty Ltd v Chamoun [2024] NSWSC 926
Godecke v Kirwan (1973) 129 CLR 629
Hanshaw v National Australia Bank Ltd [2012] NSWCA 100
Heggies Bulkhaul Ltd v Global Minerals Australia Pty Ltd (2003) 59 NSWLR 312; [2003] NSWSC 851
Huang v 18 Woodville Holding Pty Ltd (2023) 110 NSWLR 613; [2023] NSWCA 15
Lamru Pty Ltd v Kation Pty Ltd (1998) 44 NSWLR 432
Lord Inchiquin v Lyons (1887) 20 LR Ir 474
Lower v Sorrell [1963] 1 QB 959
Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749
Masters v Cameron (1954) 91 CLR 353
Mitchell v Cummings [1947] VLR 315
New South Wales v Simpson [2025] NSWSC 429
Roberts v Goodwin Street Developments Pty Ltd (2023) 110 NSWLR 557; [2023] NSWCA 5
Stead v State Government Insurance Commission (1986) 161 CLR 141
Tayleur v Wildin (1868) LR 3 Ex 303
The Presbyterian Church (NSW) Property Trust v Scots Church Development Ltd [2007] NSWSC 676; (2007) 64 ACSR 31
Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471
Vines v Australian Securities and Investments Commission (2007) 73 NSWLR 451; [2007] NSWCA 75
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
Watson v Watson (1968) 70 SR (NSW) 203
Wilnet Pty Ltd v Smart Laundry Manager Pty Ltd [2026] NSWSC 720

Category: Principal judgment

Parties: Wilnet Pty Ltd (Plaintiff)
Smart Laundry Manager Pty Ltd (Defendant)

Representation: Counsel:
AJ Munro (Plaintiff)
J Ssebabenga (by leave) (Defendant)
Solicitors:
Lewis and Crane Pty Ltd (Plaintiff)

File Number(s): 2026/00026395

JUDGMENT

1. Wilnet Pty Ltd, the Plaintiff, seeks possession of commercial premises in Coffs Harbour from which Smart Laundry Manager Pty Ltd, the Defendant, conducts a commercial laundry business. The land the subject of these proceedings is two units (collectively, the Units), being units 3 and 4 (and the hardstand to unit 4) in Lot 4 DP 1090727. The Plaintiff also seeks judgment for rent to 8 December 2025 and, after that, occupation money or mesne profits. I have granted the Plaintiff possession of the Units and the money it seeks.

2. A substantial portion of these reasons is concerned with peripheral skirmishes that arose during, and after, the hearing. Once a path has been cut through the mazy thicket of issues, this matter proves to be simple.

3. Three issues form the core of the possession case. First, whether the Plaintiff is the registered proprietor in fee simple with a prima facie right to possession of the Units; secondly, if so, whether the Plaintiff’s purported termination of the Defendant’s tenancy was valid; and thirdly, whether the Defendant has any interest that would defeat the Plaintiff’s indefeasible title. Once those issues are resolved, three further questions remain, being what the Defendant must pay for its occupation of the Units, whether the Plaintiff’s right to possession should be stayed, and costs.

Salient facts

4. Ms Esther Ssegawa is the sole director of the Defendant and has been since 9 May 2024. Her husband, Mr Joel Ssebabenga, was the sole director of the Defendant until that date. However, he has at times throughout this matter described himself in correspondence as a director of the Defendant. Over the course of this matter, including at the hearing, I granted leave for Mr Ssebabenga to represent the Defendant.

5. Yoweri Laundries Pty Ltd (Yoweri) is a company related to the Defendant but not a party to the proceedings. Ms Ssegawa is a director of both companies. Both operate from the Units. Pursuant to a deed of operational support, funding and business relationship, dated 4 January 2021, Yoweri may provide the Defendant with financial and operational support. Much of the correspondence and many of the payments to which these reasons refer emanated from Yoweri’s email address and bank account respectively or were made in its name. Yoweri communicated and made payments on the Defendant’s behalf. I have, where appropriate, noted whether communications and payments were sent to or from the Defendant or Yoweri. In either case, almost all the emails were sent by Mr Ssebabenga.

6. The Defendant was registered on 24 September 2020 under the name JS Trusted Services Pty Ltd. It changed its name to Smart Laundry Manager Pty Ltd in June 2022. The change of name is immaterial except that several documents to which these reasons will refer use the Defendant’s former name. The previous registered proprietor was R L Hill Engineering Pty Ltd (the Previous Proprietor), managed by Mr Robert Hill and Mrs Anne Hill. It leased the Units to the Defendant, in its former name, by two leases in the same standard form.

7. The lease of Unit 3, dated 2 December 2020, was for three years from 15 December 2020 to 14 December 2023. The permitted use was “Office and laundromat”. The lease of Unit 4 and the hardstand, dated 27 July 2021, was for two years, three months and one day from 14 September 2021 to 14 December 2023. The permitted use was “[i]ndustrial”.

8. Ms Ssegawa and Mr Ssebabenga guaranteed the leases. Each required a security deposit equal to one month’s rent. Neither contained an option to renew. Each provided, by cl 27, that if the lessee held over with the lessor’s consent, it would become a monthly tenant on the same terms as the lease, terminable on one month’s written notice. Both leases expired on 14 December 2023. The Plaintiff claims that, after that date, the Defendant occupied the Units under a periodic tenancy.

9. The Defendant places significance on a remittance advice for a payment made on its behalf to the Previous Proprietor on 30 December 2023 in the amount of $1,910.82 with the reference “Bond payment”.

10. On 15 April 2024, the Previous Proprietor sent to Yoweri’s email address (addressed to Ms Ssegawa) notices to vacate the Units (the Notices to Vacate) within one month. The date given was 15 May 2024. The Defendant argues that these terminated the original leases and that a new lease, called the “New Start”, was negotiated. I will return to the effect of the Notices to Vacate and the existence of the New Start lease below.

11. On 18 April 2024, Yoweri sent an email to Mr and Mrs Hill in the following terms:

“Just for clarity of what we are doing going forward, in our discussions with [the Previous Proprietor] on phone

1. We have agreed with him to pay $6,091.02 before the end of business tomorrow, and this is to cover all the outstanding bills with LJ hooker minus a water bill from March 2024

2. Before the end of this month of April 2024, you will provide us with bank details so we pay in advance rent of $3180.79 for May 2024 for the two units plus the outside place.

3. If this is done above we start a fresh with you without lj hooker, and this is to run for three months,

4. if we pay our rent on time and the water bills in these three months said in paragraph 3 above, you agreed to have with us a formal 3 year lease contract for both units and [the hardstand], we think if you’re ok we ask to have a five year lease contract instead of three years.

Please let us know that this is correct, we will be making the payment tomorrow and I will provide you with the remittance advice.

Kind regards

Esther & Joel”

12. On 23 April 2024, Mrs Hill responded that they were “[h]appy with a new start !!!!!”, continuing:

“Going forward – on or before the first day of each month, you will responsible to pay the amount of $3,213.98 inclusive of GST comprising of

$1,521.16 for Unit 3

$1,692.82 for Unit 4 including hardstand

…

During the next 3 months you need to prove to us that you can be on time with all your payments, including the Rent and Water Rates

If you are late or delinquent on any of your payments, your trial period will continue before we commit to a formal signed lease”

13. That email is pleaded in the Further Amended Statement of Claim (FASOC). The rent was generally paid on time for a period thereafter. From December 2024, rent payments once again began to be sent late.

14. On 2 May 2025, the Plaintiff’s director, Mr Daniel Williams, indicated an interest in purchasing the Units. He was informed by the Previous Proprietor’s agent that the Units were subject to a lease to a commercial laundry. That lease was described as follows:

“The expired lease continues [on] a month-to-month basis allowing the purchaser to choose to release or occupy.”

15. The Plaintiff, in an email to the Previous Proprietor’s agent on 21 May 2025, said that, while it had no “major conditions”, it wanted the leases to “remain on a month-to-month basis”. The Previous Proprietor’s agent responded that the Units “remain on a monthly hold over”.

16. A document titled “Advice of Sale” and dated 22 May 2025 included a special condition that the sale was “[s]ubject to monthly lease of [the Units]”.

17. It was against this background that the Defendant, on 12 July 2025, commenced proceedings in NCAT against the Previous Proprietor, asserting that they had agreed on a new lease. The outcome of the NCAT proceedings is not in evidence, though a 26 September 2025 email from a Mediation Officer with the NSW Small Business Commission recorded that a mediation had at some time taken place and the parties were unable to resolve the dispute at the mediation.

18. On 12 August 2025, Mr Williams and Mr Ssebabenga met to discuss the tenancy. As recorded in Mr Williams’ 22 May 2026 affidavit, during that conversation, Mr Ssebabenga asserted that the Defendant had an arrangement to lease the Units “under the current lease terms” until 2027. Mr Williams also records Mr Ssebabenga saying that the Previous Proprietor “gave me a three to 5 year lease in April 2024.” Mr Williams says that he asked for proof, but none was forthcoming.

19. Mr Williams then asked the Plaintiff’s solicitor, Ms Karen Lewis, to ask the Previous Proprietor whether any new lease arrangement had been entered into with the Defendant. Two days later, Ms Lewis informed him in an email that the Previous Proprietor “has not entered into a new agreement of any kind with the [Defendant]. The tenant is on a month to month lease.”

20. On 15 August 2025, Mr Ssebabenga wrote an email to Mr Williams saying, relevantly:

“It is very important to me that my current lease arrangements are considered during the settlement, especially since you are now aware of my dealings with the [Previous Proprietor].

It would be unfair to enforce new terms, knowing that the [Previous Proprietor] had a written agreement in place. He unexpectedly decided to sell the property and is now stating that my tenancy is on a month-to-month basis, which is incorrect.

…

My lease arrangements with the [Previous Proprietor] extend until mid-2027, and I possess all the necessary documents to substantiate this. …”

21. Mr Ssebabenga accepted in cross-examination that he never provided any such documents to the Plaintiff. The email was demonstrative of Mr Ssebabenga’s proclivity to say whatever he considered would further his interest irrespective of whether such assertions, at any point, intersect with the truth.

22. On 18 August 2025, the Plaintiff became the registered proprietor of the Units. Copies of the leases for the Units were annexed to the contract.

23. On 20 August 2025, Ms Lewis advised the Previous Proprietor’s solicitor that Yoweri had provided remittance advice for the monies paid on 30 December 2023 referred to at [9] above. She had been informed by Yoweri that that amount was a bond “top up”. The Previous Proprietor’s solicitor responded that those monies were in fact a bond in respect of a verbal agreement “for use of the yard”.

24. On 23 September 2025, the Plaintiff notified the Defendant in writing that the Defendant was in rental arrears in the sum of $4,560.77 and that the Plaintiff was entitled to terminate. The Defendant responded later that day, asserting that an equitable lease arose from the alleged performance of the conditions contained in a 23 April 2024 email from the Previous Proprietor. This was said to be evidenced by the transfer of the rental bond to the Plaintiff.

25. Between 30 September and 17 October 2025, the parties attempted to negotiate a new lease. Those negotiations did not bear fruit.

26. On 4 November 2025, the Plaintiff sent Notices of Termination and to Quit (the Notices of Termination) in respect of each of the Units. The notices were addressed to JS Trusted Services Pty Ltd and each purported to terminate “the monthly tenancy pursuant to Clause 27” of the lease for each of the Units. The Defendant was required to vacate the Units by 8 December 2025.

27. Mr Ssebabenga, through Yoweri’s email account, responded the next day. He asserted that the leases on which the Notices of Termination relied had expired. He wrote that, after the leases expired, “I entered into a new tenancy arrangement” in early April 2024, and that the agreement was “written on 23 April 2024", subject to performing certain obligations. He said that the obligations were fully performed “creating an equitable lease in favour of Yoweri Laundries” which was to run for 3–5 years. 8 December 2025 came and went without the Defendant vacating the Units.

28. The Plaintiff commenced these proceedings on 20 January 2026.

29. The Defendant’s most recent payment was on 20 April 2026.

30. On 8 April 2026, the Defendant filed a Cross-Claim seeking damages and equitable compensation. On 13 May 2026, the Plaintiff applied for security for costs. I heard that application on 19 June 2026 and, on 24 June 2026, granted the application for security: Wilnet Pty Ltd v Smart Laundry Manager Pty Ltd [2026] NSWSC 720. The Defendant had 28 days to pay the security ordered, failing which the Cross-Claim was to be dismissed. Payment was not forthcoming. After the 28-day period expired, the Cross-Claim was dismissed. During the hearing of this matter, I confirmed that the Cross-Claim was dismissed. There was no confusion about this and at no stage during the hearing did Mr Ssebabenga seek to argue the Cross-Claim.

The pleadings

31. The Plaintiff seeks the following relief:

“1. Judgment for possession of the land in Certificate of Title folio 4/1090727 being situate and described as 30 Industrial Drive, North Boambee Valley, NSW 2450.

2. An order that a writ of possession be issued to enforce the judgment for possession.

3. Judgment for the plaintiff

(a) In the sum of $18,222.43; and

(b) continuing at the rate of $3,310.36 per month from 1 May 2026 to the date vacant possession of the [Units] is delivered to the plaintiff.

4. interest pursuant to s.100 of the Civil Procedure Act.

5. An order that the defendant pay the costs of the plaintiff.”

32. In the alternative, the Plaintiff claims mesne profits from 8 December 2025 to whatever date the Defendant delivers possession of the Units.

33. The Defendant denies the Plaintiff’s entitlement to rent and possession. The Defence states, relevantly, as follows:

“2. Admissions

2. The Defendant admits that:

a. It has been in occupation of the premises;

b. There were delays in rent payments from approximately December 2025 to March 2026;

3. However, those delays:

a. were not wilful or repudiatory;

b. were caused by the Plaintiff’s conduct, including:

1. Imposing rent under a prior expired lease by issuing invoices based on terms that are no longer valid or enforceable.;

2. Not providing formal written lease per the new lease arrangement (New Start);

3. Issues water bills that include a Coffs Harbour Council non-compliance fee, which arose as a direct result of the plaintiff’s own conduct

…

5. The Defendant says:

a. A new lease arrangement existed (as pleaded in the Cross-Claim);

b. Rent was payable under that arrangement at $3,213.98 per month;

c. The Plaintiff has incorrectly calculated rent based on expired/terminated lease terms and issued incorrect invoices.

…

7. The Defendant states as follows:

a. The Defendant has paid all rent due and payable in full up to and including March 2026 in accordance with the revised lease arrangement agreed between the parties. Notwithstanding the foregoing, the Plaintiff has failed and/or neglected to issue accurate, correct, and up-to-date invoices reflecting such payments and the terms of the revised arrangement. The Defendant asserts that the Plaintiff is under a continuing obligation to provide proper and contemporaneous invoices consistent with the agreed lease terms and the payments made, and the Plaintiff is put to strict proof of any allegation to the contrary.

b. The water charges currently claimed by the Plaintiff improperly include non-compliance fees relating to wastewater. These charges arise from the Plaintiff’s own conduct and remain the Plaintiff’s responsibility to rectify. The Defendant disputes any liability for such amounts.

…

5. Council / Compliance Charges

9. The Defendant denies liability for the alleged council or compliance-related charges.

10. The Defendant says:

a. Any non-compliance issues arose from:

1. the landlord’s failure to provide compliant infrastructure;

2. refusal or failure to address wastewater and regulatory requirements;

b. Such matters were outside the Defendant’s control;

11. Further, the Plaintiff is not entitled to pass those costs onto the Defendant

…

15 The Defendant says:

a. It holds and equitable interest in the premises, as pleaded in the Crossclaim;

b. It would be unconscionable to grant possession without first determining that interest;

c. Alternatively, possession should not be granted unless and until:

1. The Defendant’s equity is fully compensated.

…

34. An obvious difficulty with the Defence is that the Defendant seeks to rely on its Cross-Claim to deny the Plaintiff the relief it seeks. However, that Cross-Claim has been dismissed, albeit for procedural reasons, not on the merits.

The hearing

35. The affidavits on which the Plaintiff relied were the two affidavits of Mr Williams, director of the Plaintiff, dated 22 May 2026 (with annexure DW-1) and 19 August 2026 respectively.

36. The Defendant relied on two affidavits of Mr Ssebabenga, dated 2 June and 21 July 2026. Mr Munro of Counsel, who appeared for the Plaintiff, objected to many paragraphs of both. In the first affidavit, I rejected as hearsay the paragraphs that described alleged dealings with the Previous Proprietor. Those paragraphs did not show that Mr Ssebabenga heard the Previous Proprietor’s words himself, and they did not identify to whom the Previous Proprietor was said to have made the statements. They therefore could not prove that the words were spoken in the making of an agreement. Tendered instead to prove the truth of what the Previous Proprietor said, they were hearsay: s 59 of the Evidence Act 1995 (NSW). For the same reason, the first-hand hearsay exceptions in ss 63 and 64 of the Act could not apply, because each requires evidence from a person who heard the representation being made.

37. As to Mr Ssebabenga’s second affidavit, several paragraphs were rejected for the same reason. Further paragraphs attempting to editorialise the contents of an email sent by the Previous Proprietor’s agent were rejected as conclusions, opinions, submissions and form. Each of them assumed the “new arrangement” which the Defendant was yet to prove.

38. The Plaintiff prepared a joint court book which was marked PX-1 at the commencement of the hearing. The Plaintiff objected to several documents which the Defendant had included in PX-1. It is necessary to deal with each of these in turn before considering the substantive issues.

39. The first document was filed on 9 June 2026 and styled, as written:

“FURTHER AND BETTER PARTICULARS PER PLAINTIFF/CROSS-DEFENDANTS REQUEST DATED 22.APRIL .2026 ATTACHED IN THIS DOCUMENT AS SECOND PAGE”

40. While Mr Ssebabenga referred to it as an exhibit to his affidavit, it was not. It was identified as the particulars to the Cross-Claim which had already been dismissed. It was filled with references to the Cross-Claim. It was relevant only to the Cross-Claim, not the Defence. Because the document sat in the court book rather than among the pleadings, I could not strike it out. However, it is irrelevant to the case before me.

41. The second document, filed on 9 June 2026, was styled:

“Exhibit A

DAMAGES”

42. This document was mostly an exhaustive catalogue of machines required for washing, drying and ironing at the commercial premises the subject of this claim. There were allegations about the inadequacy of the electricity capacity of the Units. While it bore some relevance to the dismissed Cross-Claim, it was irrelevant to the Defence.

43. The third document, filed on 9 June 2026, was styled “Exhibit C”. It was a series of emails about linen services for hotels in Coffs Harbour. Mr Ssebabenga did not press it for the purposes of the possession claim.

44. The fourth document, filed on 9 June 2026, was styled:

“ACCOUNTANT’S REPORT – LOSS OF INCOME, BUSINESS INTERRUPTION AND LOSS OF COMMERCIAL OPPORTUNITY”

45. It was prepared by Ms Ssegawa and contained her opinion of Yoweri’s production capacity, business interruption and estimated total loss. It had been prepared in support of the Cross-Claim but was irrelevant to the matter before me.

46. The fifth document, filed on 9 June 2026, was a series of subcontractor transactions in relation to Yoweri. It was irrelevant to the matter before me.

47. The sixth document, dated 4 January 2021, was styled:

“DEED OF OPERATIONAL SUPPORT, FUNDING AND BUSINESS RELATIONSHIP”

48. It recorded an agreement between the Defendant and Yoweri whereby Yoweri would, relevantly, “from time to time, provide financial assistance to [the Defendant] by way of… legal expenses… or any other financial support required for the operation of [the Defendant]”. This document was initially produced to the Court for the purposes of the Plaintiff’s application for security for costs with respect to the Defendant’s Cross-Claim. Mr Munro submitted that nothing contained within it was contained within the Defence. I admitted it, subject to relevance. I consider, however, that it is not relevant and I reject it other than for the purposes of discussing the relationship between the entities at [5] above.

49. My rulings concerning these documents are relevant because the Defendant in its closing submissions sought to refer to some of the documents I have found to be irrelevant. This was part of a pattern in which the Defendant sought to advance unpleaded matters and irrelevant evidence.

The first adjournment application

50. At the commencement of the hearing on 31 August 2026, Mr Ssebabenga sought to adjourn the proceedings for the purpose of issuing a subpoena to the real estate agent who acted for the Previous Proprietor. I refused the application for the following reasons.

51. The Court’s discretion to adjourn proceedings, contained in s 66 of the Civil Procedure Act 2005 (NSW) (the CPA), is broad. However, that discretion is regulated by s 58 of the CPA, which provides, relevantly:

58 Court to follow dictates of justice

(1) In deciding:

(a) whether to make any order or directions for the management of proceedings, including:

…

(ii) any order granting an adjournment or stay of proceedings, and

…

(b) the terms in which any such order is to be made, the court must seek to act in accordance with the dictates of justice.

(2) For the purposes of determining what are the dictates of justice in a particular case, the court:

(a) must have regard to the provisions of sections 56 and 57; and

(b) may have regard to the following matters to the extent to which it considers them relevant:

(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,

(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,

…

(iv) the degree to which the respective parties have fulfilled their duties under section 56(3),

(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,

(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,

…

52. Section 56(2) of the CPA provides that the Court, when exercising its discretion, must seek to give effect to the overriding purpose, being the just, quick and cheap resolution of the real issues in the proceedings. Parties are under a duty to assist the Court to further the overriding purpose: s 56(3).

53. Section 57 of the CPA provides as follows:

57 Objects of case management

(1) For the purpose of furthering the overriding purpose referred to in section 56(1), proceedings in any court are to be managed having regard to the following objects:

(a) the just determination of the proceedings,

(b) the efficient disposal of the business of the court,

(c) the efficient use of available judicial and administrative resources,

(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.

…

54. Where a matter has been brought on for final hearing by the proper process, a plaintiff is generally entitled to have it heard and determined: Watson v Watson (1968) 70 SR (NSW) 203 (Watson) at 206 (Asprey JA), 210–211 (Holmes JA). An adjournment for the purpose of obtaining additional evidence that should have been obtained earlier will ordinarily not be allowed: Watson at 206.

55. During the application, Mr Ssebabenga said the following:

MR SSEBABENGA: The [Defendant] respectfully submits that the prejudice of a short delay should be weighed against the possibility of finally determining possession without evidence from the property manager concerning what conduct the breach complaint between the April 2024 termination notice says.

56. Mr Ssebabenga is correct concerning the factors I must weigh in considering whether to adjourn the hearing. However, that alone does not assist him.

57. In this case, the proceedings were commenced in January 2026, the matter was set down for hearing in July 2026, the Plaintiff filed its evidence in chief in May 2026 and the last of its evidence on 19 August 2026.

58. The danger of the matter being heard without the evidence sought does not assist the Defendant. These proceedings have been on foot since January 2026. The hearing began on 31 August 2026. Mr Ssebabenga failed to articulate a single reason why the Defendant, during those many months, never issued the subpoena he now described as “bearing directly” upon “the legal and factual basis on which [the Defendant] remains in possession”. Whatever prejudice the Defendant may suffer from the absence of that evidence is the result of its own procrastination or inattention. However, Mr Ssebabenga did not suggest that the Defendant would suffer any substantial degree of injustice if the application were denied. During the application, he said:

MR SSEBABENGA: … I’m not asking the Court to accept today that documents will prove the [Defendant’s] case. I cannot propose or say what the documents as to the breach until they are produced.

59. Against this I must consider the prejudice to the Plaintiff. Mr Munro pointed out that I had, when granting the Plaintiff’s application for security for costs regarding the Cross-Claim, found the Defendant is impecunious. If there were any adjournment with the usual order that the Defendant pay the Plaintiff’s costs thrown away, such an order would be, Mr Munro submitted, worthless. I agree, and add that the Cross-Claim was dismissed due to the Defendant’s failure to pay the ordered security. Any costs order I made to ameliorate the Plaintiff’s costs prejudice would be pointless.

60. It is not only the Plaintiff that would suffer prejudice from the adjournment of a hearing which had been set down for three days. The resources of this Court are finite. Both judges and the Registry go to great lengths to ensure that matters are allocated and heard efficiently. The “short delay” Mr Ssebabenga sought would have affected future matters between litigants who doubtless take no pleasure in the stress and expense of litigation. I do not see why the consequences of the Defendant’s failure to obtain evidence should be visited upon those litigants.

61. Mr Ssebabenga sought, in the alternative to an adjournment, an order that the subpoena be issued immediately. However, even if the subpoena were issued immediately, I did not regard it as likely to be returned before the conclusion of the hearing. The Plaintiff would have suffered irremediable prejudice because the hearing would have had to be adjourned. I refused the application.

The Plaintiff’s case

62. Mr Ssebabenga cross-examined Mr Williams at length. My impression of Mr Williams is that he was a candid witness who attempted to answer questions with honesty and precision. At times, he confessed that he did not understand Mr Ssebabenga’s questions and asked him to rephrase them. He was comfortable admitting that he could not recall certain matters unless taken to the relevant passage of his affidavit.

The Defendant’s case

63. At the opening of the Defendant’s case, Mr Munro informed me that he required Mr Ssebabenga, Ms Ssegawa and Mr Shabu Simon for cross-examination. Mr Munro provided to the Court a notice which had been sent to the Defendant on 25 August 2026 informing it that each of them was required to attend the hearing and be available for cross-examination. I informed Mr Ssebabenga, both at that time and at the end of the day, that Ms Ssegawa’s affidavit and Mr Simon’s statutory declaration could not be read unless they were made available for cross-examination. Ms Ssegawa did not attend, and her affidavit was not read. Nor was Mr Simon’s statutory declaration.

64. Mr Ssebabenga was affirmed at 2.35pm and cross-examined until around 4pm.

The second adjournment application

65. When the hearing resumed after lunch, there were some short exchanges concerning the admissibility of portions of Mr Ssebabenga’s second affidavit. At approximately 2.23pm, Mr Ssebabenga returned to the witness box and was cross-examined until around 4pm. Mr Munro indicated that he needed no more than an hour the following morning to conclude Mr Ssebabenga’s cross-examination. At that time, I advised Mr Ssebabenga that, as his cross-examination had not concluded, he should not confer with anyone about his evidence. I indicated that the hearing would conclude the next day.

66. Mr Ssebabenga then, for the first time that day, raised a concern over his wellbeing. He left the witness box and walked back to his seat at the Bar table. I observed the following. Mr Ssebabenga picked up a piece of paper from the Bar table and started reading it. The contents of what he read are recorded on the transcript, which I set out as follows:

“Your Honour, I apologise but I’m feeling quite unwell. I have tried to continue the hearing, but my condition has become such that I’m having difficulty concentrating and proper representing the case, defendant’s case. I’m self-represented and I’m responsible for presenting the evidence and submissions. At present I do not believe I’m capable to conduct the remainder of the hearing over the next two days. I respectfully ask the Court to adjourn the hearing because of my present medical condition. This application is made for the purpose of not delaying the proceedings. I’m ready and I’m willing to continue the hearing when I medically able to do so. If the Court requires me to call evidence I respectfully ask for opportunity to obtain a medical certificate or other evidence confirming my condition.”

67. When I asked him to clarify the nature of his illness, Mr Ssebabenga said he was “not feeling fine”. At no stage during cross-examination did Mr Ssebabenga indicate to the Court that he was feeling unwell. Indeed, my observation was that he was loquacious, understood the questions put to him, and at no stage showed or complained of any difficulty understanding the questions by virtue of any medical symptoms. I did not observe him to be even mildly “under the weather”.

68. It was obvious to me that the document from which Mr Ssebabenga read had been prepared prior to his return to the witness box after lunch on the first day of the hearing. As I did not see him writing anything between 2.05pm and 2.35pm, I inferred that the “script” prepared by Mr Ssebabenga, that he read out at 4pm, had been prepared during the luncheon adjournment. This is not a matter which is insignificant. If Mr Ssebabenga, at 2.05pm, was feeling unwell and incapable of being cross-examined, he would have raised this when the Court resumed at 2.05pm. He did not do so. I refused the 4pm application and indicated that, while I was loath to adjourn this matter, Mr Ssebabenga could provide a medical certificate and make a further application the following morning.

The third adjournment application

69. The next morning, 1 September 2026, Mr Ssebabenga sent the following email to my chambers:

“I refer to the hearing in the above proceedings, which commenced yesterday.

At approximately 4:00 pm yesterday, I informed the Court that I had become unwell and did not feel medically fit to continue representing the Defendant for the remaining hearing days. I respectfully sought an adjournment so that I could obtain medical assessment and treatment.

My condition has worsened this morning. I have developed a temperature and headache and do not consider myself medically fit either to travel or to represent the Defendant effectively in Court today.

I reside in the Coffs Harbour area and ordinarily need to take a morning flight to Sydney to attend Court on time. Given my present condition, I was unable to safely take a flight this morning.

I have obtained the earliest available medical appointment at Woopi Medical Centre today, 1 September 2026, at 3:30 pm. A copy of the appointment confirmation is attached. I will request a medical certificate and provide it to the Court and the Plaintiff’s solicitors as soon as practicable following the appointment.

In these circumstances, I respectfully request that today’s hearing be adjourned to the nearest available date after I am medically fit to attend. The request is made because of genuine illness and not for the purpose of delaying the proceedings. As the Defendant is self-represented, proceeding in my absence or while I am medically unfit would substantially affect the Defendant’s ability to present its case.

I respectfully request that the matter not proceed in the Defendant’s absence today and that this email be brought urgently to Her Honour’s attention. If Her Honour requires me to address the adjournment request briefly by telephone or AVL, I will make every reasonable effort to do so, subject to my medical condition.

The Plaintiff’s solicitors have been copied into this email.

I apologise to the Court and the parties for the inconvenience and respectfully request confirmation of the arrangements for today.”

70. Attached to that email was a screenshot with the details of Mr Ssebabenga’s medical appointment.

71. In the circumstances, I approached the third application for an adjournment with considerable circumspection as to its bona fides.

72. Mr Ssebabenga appeared via AVL and made his application with a blue dressing gown wrapped around his head. He once again made his application by reading from a script.

73. Mr Ssebabenga submitted that he had a headache and fever, which would make it difficult for him to listen to the proceedings, identify documents, ask questions and make submissions. He continued that he had forced himself to finish the hearing the previous day and was then forcing himself to appear and make his application. Mr Ssebabenga sought that the matter be adjourned until some indeterminate time in the future when he was well enough to appear.

74. Mr Munro submitted that there was no evidence to support the application and that the Plaintiff would suffer enormous prejudice, including as to costs and in circumstances where the Defendant had not paid the Plaintiff since April 2026.

75. The relevant paragraphs of Practice Note SC CL 6, being pars 43–45, are as follows:

“Adjournment

43. To ensure efficient use of Court time, proceedings fixed for trial will not normally be adjourned unless special circumstances have arisen which could not have been foreseen.

44. An application for adjournment requires supporting affidavits.

45. An application for adjournment will not usually be granted unless the party on whose behalf the application is made is present at the time the application is made or has sworn an affidavit verifying that that party is aware of the reasons for the application and identifying those reasons.”

76. As Faulkner J observed in Gemi Nominees Pty Ltd v Chamoun [2024] NSWSC 926 at [41]:

“In this respect, PN SC CL 6 reads harmoniously with s 56(1) of the Civil Procedure Act 2005 (NSW). … In particular, paragraph 43 of PN SC CL 6 reflects the requirement in s 57(1) that regard be had to the efficient disposal of the business of the Court, the efficient use of available judicial and administrative resources and the timely disposal of all proceedings in the Court, not just the present proceedings. Whilst paragraph 45 of the practice note has not been complied with in this case, I was satisfied that the First Defendant was aware that the application was being made and the reasons for it. The adjournment should not be refused for want of compliance with paragraph 45.”

77. The present circumstance is not devoid of further guidance. The Court of Appeal addressed, at a high level, how the Court ought to treat medical certificates provided as a basis for a party to be exonerated from the need to attend court. In Bobolas v Waverley Council (2016) 92 NSWLR 406; [2016] NSWCA 139 at [221], McColl JA, with whom Simpson JA and Sackville AJA agreed, stated that “the critical question is whether, and if so why, a medical condition would prevent the [litigant] from travelling to the Court and participating effectively in a court hearing”. While no medical certificate had then been produced by Mr Ssebabenga, I considered the question identified by her Honour to be the core factual issue in any application to adjourn proceedings for medical reasons.

78. No medical certificate was attached to Mr Ssebabenga’s email, let alone a medical certificate which satisfactorily answered the question identified by McColl JA. The only attachment was an image confirming his medical appointment. If he was so unwell the previous afternoon as to request an adjournment, I do not see why he waited until the following morning to make a medical appointment, or at least to communicate the making of that appointment to the Court. Such a late appointment was perplexing because I had invited him to present a medical certificate at 10am the following morning for the purpose of making any further application.

79. There was no evidence of Mr Ssebabenga’s illness beyond the assertion contained in his email. The Plaintiff submitted that the prejudice caused by the adjournment sought would be irretrievable.

80. In circumstances where I had already found the Defendant to be impecunious for the purposes of security for the costs of the Cross-Claim, and the Defendant’s failure to pay security for costs resulted in the Cross-Claim being dismissed, the Plaintiff is very unlikely to recover its costs in the proceedings, whatever the outcome.

81. I add that any delay in this matter will be significant. As I have said at [60] above, it is no simple matter to accommodate further hearing dates, and the prejudice is not suffered only by the Plaintiff.

82. The trajectory of the proceedings is a significant factor. Mr Ssebabenga cross-examined the Plaintiff’s only lay witness for a considerable period of time. That is the only evidence, at least lay rather than documentary, that the Plaintiff placed before the Court, and it has been well and truly tested by Mr Ssebabenga’s cross-examination.

83. In relation to the Defendant’s case, Mr Ssebabenga read his affidavit evidence, which was admitted, subject to objections. It was not clear to me at the time of the application whether Mr Munro would have pressed, or needed to press, the remaining hour of cross-examination to a later date, or was satisfied with whatever concessions he felt he had obtained on behalf of his client, thus far. Either way, the proceedings were, effectively, concluded, save for each party’s closing submissions.

84. I did not accept that Mr Ssebabenga was either genuinely unwell, or sufficiently unwell as to prevent him from attending the hearing. I considered that Mr Ssebabenga was malingering to delay the finalisation of this matter, in circumstances where the history of the matter, including the first two adjournment applications, confirms that the Defendant has made repeated applications, without good reason, to delay the determination of this matter.

85. I refused the application.

86. I note that, at 5.44pm that day, Mr Ssebabenga sent to my chambers and the Plaintiff’s legal representatives a copy of a medical certificate obtained from Dr Fua Evelyn Holloway at Woopi Medical Centre. The body of that certificate read as follows:

“THIS IS TO CERTIFY THAT

Mr Joel Ssebabenga

IS RECEIVING MEDICAL TREATMENT AND FOR THE PERIOD

Tuesday, 1 September 2026 TO Friday, 4 September 2026 INCLUSIVE

He WILL BE UNFIT TO CONTINUE his USUAL OCCUPATION”

87. Mr Ssebabenga’s usual occupation is not travelling to court and participating effectively in a hearing. The certificate fails to address the critical question identified by McColl JA. I would still have refused the Defendant’s third application to adjourn even if it had been supported by the medical certificate.

The conclusion of the hearing

88. After I refused Mr Ssebabenga’s application, Mr Munro informed me that he did not need to further cross-examine Mr Ssebabenga and the Plaintiff was content to proceed to closing submissions.

89. I note that the Plaintiff raised a blanket objection to the entirety of Mr Ssebabenga’s 2 June 2026 affidavit on the basis that it did not contain the disclosure required by r 35.3B of the UCPR and had also seemingly been prepared with generative artificial intelligence. The Plaintiff had also issued a subpoena to Mr Ssebabenga requiring production of a variety of documents relating to the preparation of his affidavit. While Mr Munro foreshadowed a voir dire on the issue, I consider that objection not to have been pressed in circumstances where the Plaintiff was happy to proceed straight to submissions.

No procedural unfairness and the Defendant should not reopen its case

90. The Defendant provided its closing written submissions subject to a “procedural reservation” and “under objection as to the completeness of the hearing process”. The procedural reservation related to three steps which, the Defendant submitted, it had been prevented from taking by the way in which the hearing concluded. Those steps were:

91. the Defendant claimed it was unable to complete its proposed objections to evidence;

92. the Defendant sought a ruling on a possible application for leave to cross-examine Ms Lewis as to the Plaintiff’s knowledge before settlement, the communications about the alleged three-year arrangement, and the Plaintiff’s receipt, attribution or retention of the $1,910.82 and rent paid after settlement; and

93. the Defendant intended to tender further material which it had understood it would be able to tender. That material comprised communications about and records of access, utilities and alleged interference with the Defendant’s laundry operations after the Plaintiff became the registered proprietor of the Units, as well as documents it had sought from the Previous Proprietor.

94. The Defendant described these steps as “material to the central controversy, not collateral” and said their omission caused it forensic prejudice. The Defendant asked the Court to decide the possession claim only on evidence which had already been admitted and “tested”, and to decline to draw any disputed inference which depended on the matters it had wished, but been unable, to test. In the alternative, it sought leave to reopen its case “on a confined basis” in order to tender “the identified records and permit proportionate responsive evidence and cross-examination”.

95. The Defendant stated that it intended to seek leave to cross-examine Ms Lewis about a number of disputed matters. The Defendant submitted that any contested account advanced through Ms Lewis, or any inference depending upon facts peculiarly within the Plaintiff’s knowledge, should not be treated as tested evidence in circumstances where the Defendant did not receive the opportunity it sought to test her evidence. The Defendant linked this submission to the subpoena it sought to issue to the Previous Proprietor’s agent at the start of the hearing.

96. The Defendant submits that procedural fairness ordinarily requires a real opportunity to meet adverse evidence and submissions, citing Stead v State Government Insurance Commission (1986) 161 CLR 141 (Stead) at 145–147. The Defendant further submitted that the principles of case management contained in ss 56–58 of the CPA, and the decision in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27, require each party to have a “meaningful opportunity” to present their case. That much is axiomatic. However, those principles turn on the opportunity the parties have. Whether they avail themselves of that opportunity is a matter for them.

97. Each of the Defendant’s complaints fails. First, with respect to the objections, the Defendant provided written objections to Mr Williams’ first affidavit. I dealt with each of those objections before the affidavit was read. Mr Munro then took objections to Mr Ssebabenga’s affidavits. I ruled on every one he pressed. The only objection on which I did not rule was Mr Munro’s blanket objection under r 35.3B of the UCPR, which I have already dealt with in these reasons. The Defendant does not identify any objection it wished to take but was prevented from taking. Nor does it identify any of my evidential rulings as being wrong.

98. Secondly, Ms Lewis is the Plaintiff’s solicitor, not a witness. She did not swear an affidavit in these proceedings. A party does not have the right to cross-examine a person who has not been called.

99. The Plaintiff relied on certain documents written by Ms Lewis which formed part of PX-1, and to which no objection was taken. The Defendant had an opportunity to put its case about those documents to Mr Williams. Mr Ssebabenga did so. The Defendant asks me not to treat any contested account advanced through Ms Lewis as tested. The Plaintiff relied on Ms Lewis’s communications to prove that it made enquiries and what answers it received, not the truth of those answers.

100. Thirdly, the Defendant says it had “communications, photographs, and/or incident records” about events after the Plaintiff became the registered proprietor of the Units. It also wanted documents from the Previous Proprietor and its agent. It is not clear why the Defendant’s evidence was not served before the hearing. In any event, it concerns events after 18 August 2025. Even if every allegation were proved, none would have the slightest bearing on the question of who had the better right to possession when these proceedings were commenced. As to the documents the Defendant sought from the Previous Proprietor, I have already refused the Defendant’s application for a subpoena to be issued to the Previous Proprietor’s agent.

101. The Defendant seeks leave to reopen its case on a confined basis. Whether to allow a party to reopen is a matter of discretion to be exercised in the interests of justice: Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 478 (Clarke JA, Mahoney and Meagher JJA agreeing). Relevant considerations include whether the evidence could, with reasonable diligence, have been obtained and adduced at the hearing; whether it is likely to affect the result; and the prejudice that reopening would cause the other party.

102. Each consideration falls against the Defendant. No evidence it would adduce has been identified. The evidence it describes was available to it before the hearing and could have been obtained with mere diligence. It could not affect the result of this matter. The Plaintiff would be prejudiced by further delay. I refuse leave to reopen.

103. Finally, the hearing did not end because of any failure by Mr Ssebabenga to supply medical evidence. On the morning of the second day, I refused Mr Ssebabenga’s application to adjourn. Mr Munro then elected not to complete his cross-examination of Mr Ssebabenga.

104. In Stead, a party was denied an opportunity to make submissions on a factual issue. Here, by contrast, the Defendant’s evidence had by then been read and Mr Williams had been cross-examined at some length. Only closing submissions remained. Both parties were given the opportunity to make them in writing. The Defendant’s written closing submissions engaged with every issue at the hearing and developed several new ones. The Defendant had every opportunity to present its case. Its complaint is that it wishes it had run a different (and larger) one.

105. There was a further complaint that the Plaintiff had not filed its closing submissions in accordance with the timetable I set at the conclusion of the hearing. The relevant order was that the Plaintiff’s closing written submissions were to be “file[d] and serve[d]” by a particular date. The Plaintiff emailed those submissions to my chambers, copied to the Defendant, but did not formally file them.

106. The Defendant submitted that a document which the Court expressly ordered to be filed by a particular time should not be treated as “regularly before the Court” when the Plaintiff failed to comply with that requirement. The Defendant submitted that the Court had established a “sequential closing-submissions regime”, compliance with which “protects the orderly and procedurally fair determination” of the matter.

107. The Defendant asked the Court to record the Plaintiff’s non-compliance, not to treat the submissions as regularly filed simply because they had been served, to hear the Defendant on any application by the Plaintiff for leave to rely on the submissions or file them out of time, to confine the Plaintiff’s reply to a genuine reply of no more than two pages, and to preserve its objection even though it had responded to the Plaintiff’s unfiled submissions.

108. I will record that the Plaintiff did not file its submissions by the required time. However, the default was inconsequential. The Defendant and the Court received the submissions when they were due. The Defendant responded to them in abundance within the time allowed and nowhere in the Defendant’s submissions is there a suggestion that it would have done anything else had the submissions been filed.

109. The Defendant sought an opportunity to be heard if the Court considered that the Plaintiff’s non-compliance may have “substantive consequences”. The Court does not consider that any substantive consequences arise from the Plaintiff’s failure to file its submissions. That failure did not cause the slightest procedural friction. No further hearing is required.

110. To the extent it is necessary, I treat the Plaintiff’s submissions as filed on the date they were received.

111. As to the Defendant’s concern about the length of the Plaintiff’s reply, the reply is two pages long, as ordered, and does not supplement the Plaintiff’s principal submissions.

112. The Defendant’s prosecution of this argument concerning filing of the Plaintiff’s submissions was part of a pattern. Before, during and after the hearing, the Defendant, and Mr Ssebabenga, were granted significant indulgences. I granted Mr Ssebabenga leave to represent the Defendant though he had no right to do so. I allowed Mr Ssebabenga to bring his third adjournment application by AVL. I have decided each of the Defendant’s unpleaded arguments on its merits. At the same time, the Defendant did not pay the ordered security for its Cross-Claim, did not make Ms Ssegawa available for cross-examination, and sought to rely on material it had not served before the hearing despite having months to do so. A party which has received substantial latitude while itself frequently falling short of its obligations is in a poor position to insist on strict compliance from its opponent when the default caused no prejudice whatsoever. I consider that the subpoena and the adjournments were all attempts by Mr Ssebabenga to derail these proceedings.

Does the Defendant require leave to advance unpleaded matters?

110. The Plaintiff submitted that the Defendant’s case at trial, and in its closing submissions, went beyond its Defence.

111. Cases are in general to be determined on the issues identified by the pleadings. Rule 14.14 of the UCPR provides, relevantly, as follows:

14.14 General rule as to matters to be pleaded specifically

…

(2) In a defence or subsequent pleading, a party must plead specifically any matter—

(a) that, if not pleaded specifically, may take the opposite party by surprise, or

(b) that the party alleges makes any claim, defence or other case of the opposite party not maintainable, or

(c) that raises matters of fact not arising out of the preceding pleading.

112. The function of pleadings is to define the issues, and so to give each party a fair opportunity to meet the case against it: Banque Commerciale v Akhil Holdings Ltd (1990) 169 CLR 279 at 286–287 (Mason CJ and Gaudron J). Procedural fairness requires that relief be confined to the case properly pleaded: Roberts v Goodwin Street Developments Pty Ltd (2023) 110 NSWLR 557; [2023] NSWCA 5 at [69] (Ward P). The parties may, however, conduct a trial on a basis other than the pleadings. Whether they have done so is ordinarily a matter of inference from the way the trial was conducted, including whether one party acquiesced in the other’s departure from its pleaded case: Vines v Australian Securities and Investments Commission (2007) 73 NSWLR 451; [2007] NSWCA 75 at [57] (Spigelman CJ).

113. Although courts make allowances for self-represented litigants, those litigants are bound by the same duties as other litigants: Duraisamy v Sydney Trains [2019] NSWCA 269 at [25] (Bell P, Macfarlan and Payne JJA agreeing).

114. The Plaintiff objected at the hearing to several of the Defendant’s departures from its Defence. I will address below each matter the Plaintiff objected to. In the Defendant’s favour, and in case I am wrong about the scope of its pleading, I will also determine each unpleaded matter the Plaintiff objects to on its merits.

115. The Plaintiff submitted that arguments made by the Defendant which went beyond the pleadings were:

116. the fact of, or legal effect of, the April 2024 Notices to Vacate;

117. that the Plaintiff was on notice of any prior legal or equitable interest;

118. any issue relating to the $1,910.82 payment;

119. that constructive knowledge should be imputed to the Plaintiff by reason of failure to investigate; and

120. any of the terms of the alleged agreement with the Previous Proprietor.

121. I will deal with these in turn.

122. At the hearing, I informed Mr Ssebabenga that I would not allow the Defendant to run its dismissed Cross-Claim through its Defence. The Defence must be read on its own terms. Pars 5(a) and 15(a) plead a new lease arrangement and an equitable interest “as pleaded in the Cross-Claim”. The Defence does not by reference incorporate the Cross-Claim. The question is whether the issue is pleaded in the Defence itself and, if not, whether the Plaintiff during the hearing acquiesced in the Defendant’s departure from it.

The fact and legal effect of the April 2024 Notices to Vacate

118. The Defence does not mention the Notices to Vacate. It does, however, plead that the Plaintiff calculated rent “based on expired/terminated lease terms” and “attempted to revert to prior terminated lease terms”. The allegation that the original leases had been terminated is pleaded, albeit crabwise. The Plaintiff was not taken by surprise. The Defendant made essentially the same argument in its 5 November 2025 email to Ms Lewis and Mr Munro did not object when Mr Ssebabenga cross-examined Mr Williams about the Notices to Vacate. It is within the pleaded case and I will consider it in these reasons.

Whether the Plaintiff was on notice of the Defendant’s prior legal or equitable interest

119. Nothing in the Defence alleges that the Plaintiff had, or should have had, notice of any agreement with the Previous Proprietor, or that it failed to make proper enquiries before completion. The reference in pars 5(a) and 15(a) to an equitable interest “as pleaded in the Cross-Claim” does not fill that gap, for the reasons above. The Defence also does not rely on s 42(1)(d) of the Real Property Act 1900 (NSW) (the RPA), which the Defendant raised for the first time in its closing submissions. The Plaintiff did not acquiesce in either matter. Mr Munro objected to the Defendant relying on the Plaintiff’s notice and enquiries. Neither matter is before me on the pleadings. Nevertheless, consistently with [114], I will decide both on their merits.

The $1,910.82 payment

120. The Defence contains no mention of a bond in any amount. However, the Plaintiff, in the FASOC, pleaded the Defendant’s assertion that the transfer of the bond evidenced an equitable lease, led evidence about the payment as at [23] above and did not object when Mr Ssebabenga cross-examined Mr Williams about it. I consider that the Plaintiff acquiesced to the Defendant running the argument. I will consider it in these reasons.

Whether constructive knowledge should be imputed to the Plaintiff due to a failure to investigate

121. The Defence contains no mention of the Plaintiff’s failure to investigate. It asserts an equitable interest “as pleaded in the Cross-Claim”, but for the reasons given at [117], that does not plead the matter in the Defence. Constructive knowledge is a form of notice, and what I have said applies to it equally. It is not pleaded, and the Plaintiff did not acquiesce in its being raised the Defendant raising it. Nevertheless, I will deal with it on its merits.

Were the terms of the alleged “New Start” agreement with the Previous Proprietor pleaded?

122. The Defendant pleads that a “new lease arrangement (New Start)” existed and that rent was payable under it in the amount of $3,213.98 each month. No other term is pleaded. The Plaintiff pleaded the 23 April 2024 email at [12] above and both parties addressed the alleged New Start agreement in evidence and submissions. I will consider whether the New Start agreement existed and, if so, its terms, in these reasons.

Additional matters

123. The Defendant’s closing submissions also advanced a case in estoppel against the Previous Proprietor, an in personam claim against the Plaintiff, its deed of operational support and funding with Yoweri, matters concerning solar power and utilities, and claims for an account and repayment. None of these are pleaded and the Plaintiff objected where they arose at the hearing.

124. In its closing submissions, the Defendant sought leave to rely on or amend its Defence in order to raise those issues. That application was made in closing submissions and without a proposed amended defence attached, and after evidence had closed. I refuse leave. Nonetheless, I address each of those matters in these reasons on their merits. None of them has the slightest effect on the result.

The Plaintiff’s claim

125. The Plaintiff’s claim is not complicated. It says it is the registered proprietor of the Units, that the Defendant is in occupation of the Units, that the Defendant remained as a periodic tenant holding over after the original leases expired on 14 December 2023, that the Plaintiff gave notice on 4 November 2025 terminating the tenancy on 8 December 2025, and that the Defendant did not vacate. If the Plaintiff is correct, it has an immediate right to possession of the Units unless the Defendant establishes an interest which defeats that right. The material fact in a claim for possession is whether the Plaintiff or Defendant, at the time an initiating process is filed, has the better right to possession: Hanshaw v National Australia Bank Ltd [2012] NSWCA 100 at [19] (Young JA).

The Plaintiff is the registered proprietor

126. Section 42 of the RPA provides, relevantly, as follows:

42 Estate of registered proprietor paramount

(1) Notwithstanding the existence in any other person of any estate or interest which but for this Act might be held to be paramount or to have priority, the registered proprietor for the time being of any estate or interest in land recorded in a folio of the Register shall, except in case of fraud, hold the same, subject to such other estates and interests and such entries, if any, as are recorded in that folio, but absolutely free from all other estates and interests that are not so recorded except—

…

(d) a tenancy whereunder the tenant is in possession or entitled to immediate possession, and an agreement or option for the acquisition by such a tenant of a further term to commence at the expiration of such a tenancy, of which in either case the registered proprietor before he or she became registered as proprietor had notice against which he or she was not protected—

Provided that—

(i) The term for which the tenancy was created does not exceed three years, and

(ii) in the case of such an agreement or option, the additional term for which it provides would not, when added to the original term, exceed three years.

127. As Faulkner J said in New South Wales v Simpson [2025] NSWSC 429 at [36]:

“36 The system constituted by s 42, and the various other provisions ancillary to it, is sometimes called the Torrens System. The key principle upon which the Torrens system operates is that pre-existing estates and interest in New South Wales land are not registered on the register maintained by the Registrar-General under s 31B. Rather, estates and interest in the land are created by registration. The principle was explained by the High Court in Breskvar v Wall (1971) 126 CLR 376 at 385; [1971] HCA 70 at [15] (Barwick CJ with whom McTiernan, Menzies, Windeyer, Owen, Walsh and Gibbs JJ agreed) as follows:

‘The Torrens system of registered title of which the Act is a form is not a system of registration of title but a system of title by registration. That which the certificate of title describes is not the title which the registered proprietor formerly had, or which but for registration would have had. The title it certifies is not historical or derivative. It is the title which registration itself has vested in the proprietor.’”

128. Within DW-1 is a title search from NSW Land Registry Services. It was issued on 18 August 2025, the day the Plaintiff became the registered proprietor of the Units. The Plaintiff, listed under the First Schedule of the title search, is the registered proprietor: Ausbao (286 Sussex Street) Pty Ltd v The Registrar-General of New South Wales [2023] NSWCA 18 at [17] (Beech-Jones JA, Bell CJ and Mitchelmore JA agreeing). That interest is subject to the exceptions, encumbrances, interests and entries that appear in the Second Schedule, none of which is relevant to this case. Accordingly, the Defendant has no registered interest in the Units. The Defendant does not claim fraud, so any exception to indefeasibility is to be found elsewhere.

129. Knowledge of the Defendant’s asserted interest could not amount to fraud. Section 43(1) of the RPA provides, relevantly, that a person taking a transfer from the registered proprietor shall not, except in the case of fraud, “be affected by notice direct or constructive of any trust or unregistered interest”, and that “the knowledge that any such trust or unregistered interest is in existence shall not of itself be imputed as fraud”. Notice is relevant here because it is, pursuant to s 42(1)(d) of the RPA, an element of the exception for tenancies. Without it, the Defendant can only defeat the Plaintiff’s indefeasibility by establishing an in personam claim against the Plaintiff.

130. The Defendant submits that the Plaintiff chose a “particular juridical route” to possession, being (a) that the leases expired, leading to (b) a periodic tenancy under cl 27 of the lease, and then (c) termination of the tenancy by the Notices of Termination. The Defendant submits that the Plaintiff is required to prove each of those steps.

131. This submission is partly correct. The Plaintiff admits that the Defendant occupied the Units as a tenant. The Plaintiff accepts that it must prove that the tenancy ended. However, it does not follow that the Plaintiff must prove that the periodic tenancy under cl 27 of the lease continued unchanged from 14 December 2023. The Plaintiff in fact pleads that a periodic, month-to-month, tenancy arose from the Defendant’s continued occupation of, and payments for, the Units.

132. The Plaintiff’s case has sufficient flexibility to allow for a monthly tenancy arising after the April 2024 Notices to Vacate. It is in this respect harmonious with the Defendant’s own case. If the tenancy proved is a monthly tenancy, irrespective of how that monthly tenancy came about, the question becomes whether the Notices of Termination were effective in ending the tenancy. The Defendant bears the onus for each of the interests it asserts.

The tenancy as at 4 November 2025

133. The Defendant submits, correctly, that to succeed, the Plaintiff must establish that the Defendant’s right to occupy the Units had ended by the time the Plaintiff commenced these proceedings. This requires the Court to identify the state of the tenancy immediately before the Notices of Termination were issued. Answering that will determine, first, what the Notices of Termination actually had to end and, secondly, whether the Defendant has any interest capable of defeating the Plaintiff’s indefeasibility.

134. There are within the parties’ respective cases four possibilities. Three of them are put forward by the Defendant:

135. the Plaintiff’s case, being that the periodic tenancy which came into effect under cl 27 of the leases when they expired continued until the Notices of Termination were issued;

136. the Defendant’s primary case, being that the emails of 18 and 23 April 2024 at [11]–[12] above produced a binding agreement for a three-year (or five-year) lease;

137. the Defendant’s secondary case, being that the Notices to Vacate ended the tenancy and a new monthly tenancy came into existence by virtue of the Defendant’s continued occupation of the Units combined with the Previous Proprietor’s acceptance of its payments; and

138. the Defendant’s tertiary case, being that the Previous Proprietor was estopped from denying the Defendant a three-year tenure.

139. I will first deal with the Notices to Vacate, then with the alleged agreement and estoppel and the $1,910.82 payment, before finally determining the nature of the tenancy as at 4 November 2025, when the Notices of Termination were issued.

The effect of the April 2024 Notices to Vacate

136. The leases for each of the Units expired on 14 December 2023. The Defendant continued to occupy the Units and the Previous Proprietor continued to accept the Defendant’s payments. The leases for the Units contained identical clauses concerning the end of the lease. That clause is as follows:

“27 At end of lease

If this lease is not renewed or if its term is not extended and if the Lessee holds over after the expiration of the lease with the consent of the Lessor then the Lessee will become a monthly tenant (the tenancy being terminable by one months written notice given by either party and expiring on any day) at the same rent per month as is then payable and on the same terms and conditions as are contained in this lease so far as they can be applied.”

137. Accordingly, the Defendant was, from 15 December 2023, a monthly tenant of each of the Units. The Defendant accepts that cl 27 operated to continue the terms of the original lease in so far as it was possible until a notice to quit or of forfeiture ended the tenancy.

138. On 15 April 2024, the Previous Proprietor caused its agent to send to Yoweri’s email address Notices to Vacate with respect to each of the Units. The notices were addressed to Ms Ssegawa. I set out the relevant part of the notices, the bodies of which are identical, below:

“We refer to the abovementioned property and wish to advise that we hereby give one months notice for you to vacate being 15/05/2024.

Please ensure the premises are left in a clean and tidy condition and ‘made good’ as per the Lease and the keys/access cards are returned on or before this date.”

139. The Defendant submits these notices terminated the monthly tenancy which had been in effect since the term of the lease expired in December 2023. It says the Notices to Vacate are not “tentative negotiating documents”, and that unless they were withdrawn, waived or replaced, they ended the monthly tenancy from 15 May 2024. The Defendant points out that Mr Williams, in cross-examination, disclaimed any knowledge of the Defendant’s dealings with the Previous Proprietor throughout April and May 2024, and that he could not identify any documents demonstrating that the parties agreed to withdraw the notices.

140. The Plaintiff responds that, if the monthly tenancy under cl 27 ended, the Defendant’s continued occupation gives rise to another periodic tenancy.

141. Although these Notices to Vacate were addressed to Ms Ssegawa, not the Defendant (or Yoweri), and she was not at that time a director of the Defendant, I am not concerned by such a minor misdescription. Three days after the Notices to Vacate were issued, Yoweri contacted the Previous Proprietor proposing a “New Start”. The Defendant was not confused. On 23 April 2024, well before the Notices to Vacate expired, the Previous Proprietor responded “[h]appy with a new start !!!!!” and set out in that email the terms of the tenancy going forward. The Defendant never vacated the Units. The Defendant called no one from the Previous Proprietor. I have already rejected Mr Ssebabenga’s evidence of the Previous Proprietor’s alleged statements. The only evidence of how the parties treated the Notices to Vacate is their correspondence.

142. There is conflicting authority, and little of it Australian, as to whether, where a notice to quit is withdrawn before its expiration date, the old tenancy continues or a new one necessarily arises: see Arnold v Mann (1957) 99 CLR 462 (Arnold) at 474 (Dixon CJ), 480 (Fullagar J); Tayleur v Wildin (1868) LR 3 Ex 303; Lord Inchiquin v Lyons (1887) 20 LR Ir 474; Freeman v Evans [1922] 1 Ch 36; Lower v Sorrell [1963] 1 QB 959; Mitchell v Cummings [1947] VLR 315; Fareham Borough Council v Miller [2013] EWCA Civ 159.

143. It is unnecessary to decide that question here. If the Notices to Vacate did not take effect, or if, so far as it is possible, the parties agreed before 15 May 2024 that the original lease would continue, the monthly tenancy under cl 27 continued, albeit with altered time and manner of payment. If they did take effect, or if the Notices to Vacate necessarily created a new tenancy, the Defendant’s continued occupation of the Units, coupled with the Previous Proprietor’s acceptance of monthly payments, gave rise to a new monthly tenancy. Whichever is correct, the Defendant from May 2024 was a tenant of the Units under a monthly tenancy.

144. In the Defendant’s favour, I will assume that the Notices to Vacate ended the monthly tenancy under cl 27 on 15 May 2024. The terms of the new tenancy were not materially different from those under the cl 27 tenancy. The rent was the rent the leases provided for, after its annual increases. The rent for the Units was now to be paid together, rather than separately, and on the first of each month. A monthly tenancy on such terms was determinable on one month’s written notice regardless of whether cl 27 applied: s 127(1) of the Conveyancing Act 1919 (NSW) (the Conveyancing Act).

145. I next turn to whether the emails of 18 and 23 April 2024 result in the Defendant having more than a monthly tenancy.

There was no agreement for a three- (or five-) year lease

146. The Defendant’s primary case is that the 18 and 23 April 2024 emails, together with performance of the conditions contained in those emails, produced a binding agreement for a three-year lease of the Units. It does not submit that its request for a five-year lease was ever anything more than a request.

147. Whether parties who contemplate the execution of a formal document have in fact made a binding agreement depends on their objective intention: Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8 at [25]. Three categories of agreement were identified in Masters v Cameron (1954) 91 CLR 353 (Masters) at 360. In the first category, the parties have agreed and intend to be bound immediately, though they intend to more fully state the terms of the agreement. In the second category, the parties have agreed on all the terms but they have made performance of one or more of those terms conditional on the execution of a formal document. In the third category, for which no contract arises, the parties do not intend to make a concluded bargain unless and until a formal agreement is executed. A fourth category was added by McLelland J in Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622 at 628. In that fourth category, the parties are content to be bound immediately and exclusively by the terms they had agreed upon while still expecting to make a further agreement, superseding the initial agreement, containing additional terms. If the parties have agreed on the essential terms of an agreement, a bargain between parties may be binding even without a formal agreement: Godecke v Kirwan (1973) 129 CLR 629 at 638 (Walsh J, Mason J agreeing). The three categories which give rise to contracts each require the parties to have agreed on the essential terms.

148. I am satisfied that the emails sent on 18 and 23 April 2024 did not produce an agreement for a three-year lease. First, the Previous Proprietor did not accept the proposal for a three-year lease. The Previous Proprietor said “[h]appy with a new start !!!!!” in reference to the Defendant’s proposal to “start a fresh with you”. The Defendant’s characterisation of the Previous Proprietor’s enthusiastic response (to a tenant volunteering to pay rent on time) as evincing a willingness to commit to a three-year tenancy after three months of timely rent does not survive a reading of the correspondence.

149. Secondly, the Previous Proprietor’s response did not accept the Defendant’s proffered terms. It slightly altered the terms. It was, at most, a counter-offer as to how the Defendant would pay while it continued to occupy the Units.

150. Thirdly, the Previous Proprietor’s response described the arrangement as a “trial period”. The Defendant had to “prove” to the Previous Proprietor that it could be on time with its payments. The Previous Proprietor reserved its decision as to whether it would “commit to a formal signed lease”. That is not the language of a party willing to bind itself. Even on a reading of the email exchange which is generous to the Defendant, any agreement could only fall within the third category of Masters and so no contract would arise.

151. Fourthly, the term of the agreement was never settled. Contrary to the Defendant’s submissions, the Defendant’s email leaves open the question of whether the proposed lease would run for three years or five.

152. Mr Ssebabenga’s own account of the terms has been inconsistent. In his 5 November 2025 email to Ms Lewis, Mr Ssebabenga said the Previous Proprietor promised to issue a “new 3–5 year lease”. During cross-examination, he seemed to suggest that it was a three-year lease with an option to extend to five years if certain additional conditions were fulfilled, saying:

“MR SSEBABENGA: … we were promised that, when we fulfilled payments of three months, on the first day of the first day of each month, we would be given the formal lease of three years. That’s not in myself I told the previous proprietor that, ‘Yes, we accept the three years, but can you give us five?’ and then he said, ‘If you want me to give you five, you will do all the registration and pay the solicitors and everything’. I said, ‘Okay’.

So, the original lease is three years. That’s why I’m saying our lease was supposed to end in May 2027. Those are the three years. So the other discussion was agreed upon, the five years, but I put it on the table and he said, ‘If you do this, I will accept it’. But for him, after one year of us agreeing, he had another thing of selling the property, but he did not tell us about it. So for us, we did going ahead, do everything, what we did, knowing our three years are going to be given to us, but then this happened.”

153. In closing submissions, the Defendant described the term as a:

“three-year tenure [which] became unconditional upon completion of the stipulated three-month performance period…, with the formal term operating no later than 1 August 2024 to 31 July 2027. If the Court considers the term commenced earlier, the precise date affects expiry but not the proposition that it remained current on 4 November 2025.”

154. In the Defendant’s application to the NSW Small Business Commission for mediation, the dispute details state that the Defendant “previously had an understanding with the landlord that a formal three or five-year written lease agreement would be provided once we fulfilled certain conditions after our initial three-year lease.”

155. The parties’ later conduct is consistent with my conclusion. No formal lease was ever prepared, and Mr Ssebabenga’s evidence in cross-examination was that the Previous Proprietor maintained for over a year that one would be forthcoming, but it never arrived. The Defendant, in its closing submissions, points out that its payment of rent and water was punctual after May 2024 (at least until December 2024). However, each of those factors is compatible with a monthly tenancy. They provide no support for the Defendant’s contention that the Previous Proprietor bound itself to a new lease of three or five years.

156. As the Defendant has failed to establish that it entered into an agreement with the Previous Proprietor for a lease of three years, five years or any fixed term, the Defendant’s reliance on s 54A of the Conveyancing Act and the doctrine of part performance does not arise. There is no agreement to which any act of part performance is referable.

The Previous Proprietor was not estopped

157. The Defendant submits, in the alternative, that the Previous Proprietor was estopped from denying it a three-year tenure. This argument is not pleaded, but I will consider it. It fails for the following reasons.

158. First, the Defendant must demonstrate, inter alia, that the Previous Proprietor induced it to assume that a particular legal relationship would come into existence, and that the Defendant acted in reliance on that inducement to its own detriment: Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 428–429 (Brennan J).

159. No such assumption exists in this case. The only admissible evidence of what the Previous Proprietor said is in Mrs Hill’s 23 April 2024 email. The Previous Proprietor’s reply said nothing about a three-year term. The offer of a trial period may have encouraged optimism, or even hope, but it cannot be said that the offer was capable of inducing a belief that a lease for a fixed term would definitely be granted if certain conditions were met.

160. Secondly, in any event, there is no detriment. The Defendant, immediately after the April 2024 email exchange, paid just over $6,000 to the Previous Proprietor, but that was to discharge a debt it owed. Continued, and punctual, rent payments bought occupation. On the Defendant’s own account, its expenditure on a potential new site in Grafton preceded April 2024. That money was expended before the April 2024 email exchange in anticipation of being forced to vacate. It cannot have been incurred in reliance on an assurance which had not occurred.

161. Thirdly, even if the Previous Proprietor was estopped, the estoppel claim is misconceived. Any equity against the Previous Proprietor would be an unregistered interest. It would not bind the Plaintiff.

162. Fourthly, if the Defendant wanted to advance such a claim, it could only do so by the joinder of the Previous Proprietor.

The $1,910.82 was a top-up, not security for the New Start agreement

163. The payment of $1,910.82 is relevant in two ways. First, the Defendant argues that the Previous Proprietor required the payment as security for the New Start lease. Secondly, the Defendant argues that because the Previous Proprietor passed the payment to the Plaintiff after purchase, the Plaintiff stepped into that arrangement. This is incorrect.

164. Yoweri paid the Previous Proprietor’s agent $1,910.82 on 30 December 2023, two weeks after the leases had expired. The remittance advice described it as a “Bond payment”. The payment came nearly four months before the Notices to Vacate and the New Start email exchange in April 2024. The payment cannot have secured, or been performance of, an arrangement that had not yet been proposed. The Defendant submitted that there were “verbal discussions at or about the expiry of the original terms in December 2023”. There is no evidence of any such discussions, and the 18 April 2024 email does not disclose the slightest hint of one.

165. The Plaintiff’s account of the payment does not go much further. The Previous Proprietor’s solicitor told Ms Lewis that the payment was a top up bond for the Units. No one described it as payment for a yard until the Previous Proprietor did so after settlement. There is no other evidence of any agreement about a yard.

166. The payment was exactly what the Previous Proprietor’s agent said it was: a top-up of the security for the Units, paid during the monthly tenancy. It provides no support to the purported New Start lease, to any equity, or to the claim that the Plaintiff purchasing the Units was subject to either. The Plaintiff now holds the payment as a bond and it must be credited against the money the Defendant owes in relation to the money claim.

167. The payment does nothing for the Defendant’s case for a lease or an equity. It, like everything else in this matter, is consistent with the monthly tenancy.

Conclusion

168. Of the four possibilities identified above, only the Plaintiff’s case and the Defendant’s secondary case survive. There is no practical difference between them. There was no agreement for a three- or five-year lease. The Previous Proprietor was not estopped from denying such a lease. The $1,910.82 is a top-up bond but is largely immaterial. As at 4 November 2025, the Defendant held a monthly tenancy of the Units. Whether that tenancy continued under cl 27 or arose afresh in May 2024, it was terminable by one month’s written notice under either cl 27 or s 127 of the Conveyancing Act.

The Defendant has no interest which binds the Plaintiff

Section 42(1)(d) of the RPA does not assist the Defendant

169. In its closing submissions, the Defendant raised s 42(1)(d) of the RPA, which is set out at [126] above, as an exception to the Plaintiff’s indefeasibility. That provision had not been raised at any point earlier in the proceedings. There is no doubt that it is outside the pleaded case and has no effect on these proceedings. For completeness, I will address the argument. It fails.

170. The exception protects a tenancy created for a term not exceeding three years, of which the registered proprietor had notice: Huang v 18 Woodville Holding Pty Ltd (2023) 110 NSWLR 613; [2023] NSWCA 15 at [20]–[23] (Meagher JA, Kirk JA and Griffiths AJA agreeing). The Defendant’s argument fails at the first step. The only tenancy in existence when the Plaintiff became the registered proprietor was the monthly tenancy. There was no New Start lease of which the Plaintiff could have had notice. The provision does not operate on notice of tenancies which do not exist. Even if there had been an agreement, its term was never settled. It was, variously, three years, three to five years, or five years if Mr Ssebabenga paid for registration.

171. The monthly tenancy itself was within s 42(1)(d). The Plaintiff knew of it and bought the Units subject to it. That tenancy bound the Plaintiff until the Notices of Termination ended it. It gives the Defendant no right to remain in the Units after that.

172. It is therefore unnecessary to decide what the Plaintiff knew, or should have found out, before completion. If it were necessary, I would reject the Defendant’s submission that the Plaintiff failed to “resolve the known conflict” between the Previous Proprietor’s account and Mr Ssebabenga’s.

173. Before completion, the Plaintiff had leases which on their face expired on 14 December 2023, and the Previous Proprietor’s agent’s statements that the Units were held on a monthly basis. Against that, it had Mr Ssebabenga’s assertion of a new lease. He claimed to have documents proving it, but conceded that he never provided them, and that not a single document on which the Defendant now relies was given to the Plaintiff before completion. The Plaintiff’s solicitor asked the Previous Proprietor whether any new agreement had been made and was told none had. The Defendant accepts that this enquiry was made.

174. The Plaintiff was required to make reasonable enquiries. It did so. The mere fact that a tenant asserts a lease does not require a purchaser to go further, particularly where the tenant offers nothing to support the assertion and the landlord denies it. The Plaintiff could not force Mr Ssebabenga to prove his claim or to withdraw it.

175. The Plaintiff had notice of an assertion. It did not have notice of a tenancy, because none existed beyond the monthly tenancy to which it took subject. The exception under s 42(1)(d) of the RPA does not assist the Defendant.

The Defendant does not have an in personam exception to indefeasibility

176. The Defendant claims to have an in personam exception to the Plaintiff’s indefeasibility.

177. A registered proprietor may be bound by an equity arising from its own conduct, such as an obligation it has undertaken: Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 at [193]–[198]. Notice of an interest is a necessary, but not sufficient, condition for the creation of a personal equity. Acknowledgement of that interest is required: Heggies Bulkhaul Ltd v Global Minerals Australia Pty Ltd (2003) 59 NSWLR 312; [2003] NSWSC 851 at [103]–[104] (Austin J). As Young CJ in Eq said in The Presbyterian Church (NSW) Property Trust v Scots Church Development Ltd [2007] NSWSC 676; (2007) 64 ACSR 31 at [114]:

“Acknowledgement in this type of case means more [than] the realisation that a right exists. It connotes the case where a person not only recognises the right exists, but also undertakes to respect that right.”

178. The Defendant founds this argument on the Plaintiff’s post-settlement conduct following its acquisition of the Units, in particular its acceptance of rent following settlement. Significance is attached to the alleged context of the Plaintiff’s knowledge of the Defendant’s position before settlement, the Defendant’s occupation of the Units, the New Start lease, the continued retention of the $1,910.82 payment and the Plaintiff’s subsequent purported termination of the tenancy.

179. Here, the Plaintiff bought the Units subject to a monthly lease. It undertook nothing. Mr Williams informed Mr Ssebabenga via email on 15 August 2025 that:

“any unofficial arrangements made with the [Previous Proprietor] that are not documented in the lease cannot be carried forward.

The property has been purchased on current terms stating your tenancy on a month-to-month basis.”

180. After the Plaintiff purchased the Units, it proposed new terms, negotiated, then terminated the negotiations. That is precisely the conduct of a landlord who denies the alleged New Start lease. It received rent each month because that was the amount owing under the tenancy.

181. In any event, the Plaintiff is not bound by any equity against the Previous Proprietor. It would be an unregistered interest and the Plaintiff’s notice of it would not be fraud: s 43 of the RPA.

182. The Defendant has no interest that binds the Plaintiff.

The 4 November 2025 Notices of Termination

183. On 4 November 2025, the Plaintiff sent Notices of Termination and to Quit to the Defendant in respect of each of the Units. The Notices of Termination identified the Units and the original lease, and were signed by Mr Williams and Mr Binet. The bodies of the Notices of Termination were nearly identical save for a single, inconsequential, word, and read as follows:

“TAKE NOTICE that the monthly tenancy pursuant to Clause 27 of the Lease for the premises is hereby terminated as from 8 December 2025 and that the lessor demands that you vacate the premises on or before 8 December 2025 and make good the Premises as required by the ‘Make Good Obligation’ in the Special Conditions attached to the Lease.”

184. The Defendant submits that the Notices of Termination were confined to a monthly tenancy under cl 27. Therefore, it says, they could not end the New Start agreement, the equity or any new monthly tenancy emerging after the April 2024 Notices to Vacate.

185. As I have already said, there was no New Start agreement, and the Defendant has no equity. As to the third option, the Notices of Termination are to be construed objectively by considering how a reasonable recipient with knowledge of the background of the matter would have understood them: Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749. I am satisfied that such a reasonable recipient would have understood the Notices of Termination as ending the periodic, monthly tenancy and requiring the Defendant to give the Plaintiff possession by 8 December 2025. The Defendant clearly understood the Notices of Termination that way. It has at every stage disputed their validity without ever questioning their meaning.

186. It is necessary only that a monthly tenancy existed. If the cl 27 tenancy was on foot, the Notices of Termination terminated it under cl 27. If a new monthly tenancy arose in May 2024, it arose on the terms of the original leases in so far as they could apply. Clause 27 was among the terms that could apply. As I have already said, if cl 27 did not apply, the tenancy was terminable on one month’s notice under s 127 of the Conveyancing Act. One month’s notice was given and that is all that was necessary.

187. The Notices of Termination describe the Units as “Lot 3” and “Lot 4 and Hardstand”, name the lessor under the original leases as “R L Hill Pty Ltd”, and address the Defendant by its former name. None of these errors would have misled a reasonable recipient. Clearly none misled the Defendant. Contrary to the Defendant’s submission, the notice for Unit 4 dates the lease correctly, as 27 July 2021, and the Notices of Termination ended the tenancy on 8 December 2025.

The Plaintiff’s post-settlement and post-termination conduct

188. The Defendant places some reliance on what the Plaintiff did after settlement of the Units. It claims that the Plaintiff accepted the “established… rent practice”, dealt with the Defendant as a continuing tenant, accepted the bonds and later relied on particular terms of the old leases.

189. While the Defendant concedes that acceptance of rent alone does not prove adoption of every asserted term, it maintains that the Plaintiff’s conduct amounts to adoption, founds an estoppel or bears on waiver and the character of the tenancy the Plaintiff terminated. None of these are pleaded, but I will, again, deal with these issues on their merits.

Conduct between 18 August 2025 and 8 December 2025

190. Both before and after the Plaintiff became the registered proprietor of the Units, it invoiced rent for each month and received that amount. That rental amount was not set by the Plaintiff. It was the same as the rent being paid to the Previous Proprietor immediately before settlement.

191. On 14 August 2025, the Plaintiff sent an email to Mr Ssebabenga, saying it would “only be accepting the current month-to-month lease in place” and that it could not “accept or agree to any previous communication or arrangements with the [Previous Proprietor].”

192. On 23 September 2025, Ms Lewis sent a letter to the Defendant, saying that the Plaintiff “is not bound by and has no interest as regards any agreements or arrangements that you may have discussed with [the Previous Proprietor].”

193. This is consistent with the Plaintiff being a purchaser taking title subject to an existing tenancy. It is wholly unsurprising that a landlord would receive the existing amount of rent from a tenant. The conduct the Defendant points to is perfectly consistent with a monthly tenancy. It cannot support the adoption of a fixed-term agreement or the acknowledgement required by an in personam claim.

194. The Defendant’s estoppel argument goes no further. The Defendant has failed to identify a single representation the Plaintiff made indicating the Defendant could stay for a term. As is clear, the Plaintiff did exactly the opposite. The alleged detriment all predates the Plaintiff’s ownership of the Units and arose from the Defendant’s dealings with the Previous Proprietor. At no point has the Defendant done anything in reliance on the Plaintiff.

After 8 December 2025

195. After the Notices of Termination expired, the Defendant continued to occupy the Units and the Plaintiff continued to issue invoices. The Plaintiff has not received any payments from the Defendant since April 2026.

196. Upon the expiration of the Notices of Termination, the tenancy ended: Arnold at 479 (Fullagar J). There is no reason to imagine that a new tenancy arose here.

197. Nothing the Plaintiff did after completion indicated that it would bind itself to the arrangement asserted by the Defendant. Nothing it did after 8 December 2025 created a new tenancy. The Defendant has, since that date, occupied the Units without any right to do so.

The Plaintiff should be granted possession of the Units

198. The Plaintiff is the registered proprietor of the Units. When it became the registered proprietor, the Defendant had a monthly tenancy of the Units. The Plaintiff had notice of that tenancy and took subject to it, so the tenancy bound the Plaintiff under s 42(1)(d) of the RPA. The Notices of Termination ended the tenancy on 8 December 2025. Nothing the Plaintiff did after that date created a new tenancy. The Defendant has no other interest that binds the Plaintiff. There was no agreement for a three- or five-year lease. The Previous Proprietor was not estopped. The Defendant has no personal equity against the Plaintiff.

199. The Plaintiff had the better right to possession of the Units when it commenced these proceedings. It still has that right and it is entitled to judgment for possession.

The money claim

200. The Plaintiff claims $18,222.43 for unpaid rent and outgoings. In the alternative, it claims the same amount as mesne profits, continuing at $3,310.36 each month until the Defendant gives up possession. The Plaintiff estimates that, as at 31 August 2026, the balance owed is $31,454.46.

201. The Defendant does not deny owing some money. Mr Ssebabenga, in cross-examination, accepted that the Defendant owes $3,213.98 each month plus outgoings. While the Defendant accepts liability for “properly calculated rent or occupation money”, it maintains that the Plaintiff must prove each invoice and the details of each as well as the basis for each outgoing.

202. Until 8 December 2025, the Defendant was a monthly tenant of the Units who owed $3,213.98 each month. The Plaintiff invoiced at that rate from August to December 2025 and the Defendant does not dispute the rate in that period. The December rent was due on 1 December 2025. It is payable in full.

203. From 8 December 2025, the Defendant occupied the Units without any right to do so. No rent was payable after that date. However, the Plaintiff may recover mesne profits, which are measured by the value of the use and occupation of, in this case, the Units. The market rent is the ordinary measure of what the occupant should have been paying: Lamru Pty Ltd v Kation Pty Ltd (1998) 44 NSWLR 432 at 439–440 (Cohen J).

204. Since 15 December 2025, the Plaintiff has invoiced the Defendant $3,310.36 each month. The Defendant argues that the Plaintiff cannot rely on leases that expired in 2023.

205. In one sense, the Defendant is right. By 15 December 2025, the tenancy had ended. There was no rent that could be reviewed. That is not the end of the matter.

206. The question after 8 December 2025 is not one of the value of rent but of the value of the Defendant’s continued occupation of the Units. The evidence on this question is not favourable to the Defendant. In August 2025, the Plaintiff offered a new lease at $4,189.33 each month plus GST. The Defendant was also to pay council rates and insurance. On 14 October 2025, the Defendant offered a 4% increase on rental payments and also to begin paying council rates. A few days later, the Defendant offered a 5% increase.

207. The Defendant led no evidence undermining its own previous valuation of its occupation of Units. Its own offers are the best evidence of the value of occupation of the Units. The offers exceed what the Plaintiff claims. I am satisfied that the value of the Defendant’s occupation of the Units is not less than $3,310.36 each month.

208. Each lease made the lessee responsible for outgoings. Until 8 December 2025, those obligations were part of the monthly tenancy. After that date, the Defendant’s water use is part of the Plaintiff’s loss. It falls within the claim for mesne profits.

209. Mr Ssebabenga did complain about the council’s non-compliance charges. He asserted that they cost more than $1,000 each month. The Plaintiff maintains that no invoice reveals such a charge.

210. For the quarter from 9 March to 9 June 2026, the City of Coffs Harbour charged for “Non-Compliant Trade Waste Usage” of just over $200 each month. That account was passed on to the Defendant. I have not been able to find any evidence of charges of the kind alleged by the Defendant that are in the region of $1,000 each month.

211. The Defendant says the non-compliance charges are the Plaintiff’s responsibility, because they are caused by the Plaintiff’s failure to provide compliant infrastructure. The Defendant does not in support of that submission rely on any term of either lease obliging the Plaintiff to provide compliant infrastructure. The charge is for the Defendant’s laundry discharge. The lessee is responsible for its own infrastructure. The Plaintiff can recover the non-compliance charges.

212. The Plaintiff is also entitled to interest under s 100 of the CPA on each unpaid amount from the date that amount fell due until judgment. I will not in these reasons attempt to work out the total. I will make orders directing the Plaintiff to work out the sum due.

Solar power, utilities and account and repayment

213. In its closing submissions, the Defendant complained about the solar power system at the Units and the supply of utilities to the Units after the Plaintiff became the registered proprietor. These are not pleaded and do not bear on the proceedings, but, again, I will for completeness address them.

214. The Defendant’s complaints could not affect the claim for possession even if they had been proved, which they were not. They concern the Plaintiff’s conduct as landlord. None of them are material to the better right to possession or on the validity of the Notices of Termination. They do not affect the money claim, as the Defendant has not pleaded (or even argued) a set-off. The Defendant failed to identify any term of either lease which obliged the Plaintiff, as landlord, to provide solar power or to do so in any particular manner. The complaints about solar power and utilities fail.

215. Also in its closing submissions, the Defendant sought an account of money it had paid to the Plaintiff since settlement and repayment of any overpaid monies. Neither of these claims is pleaded, nor do they bear on this matter. My orders will require the Plaintiff to prepare a schedule calculating the amount the Defendant owes, crediting it for payments received and for the $1,901.82. The Defendant is able to dispute any item in the schedule, and I will determine the final amount on the papers. The schedule will reveal if the Defendant has overpaid.

Possession should be stayed for two weeks

216. The Plaintiff is entitled to judgment for possession of the Units and to a writ of possession. In its closing submissions, the Defendant submitted that the Court should not be hasty in ordering possession. It asked the Court to fix a “realistic vacation date” by reference to the Defendant’s evidence about its machinery, utilities, contractors and possible replacement premises and then stay the writ until that date on certain conditions. The Defendant also sought a “targeted reopening” of evidence directed to its relocation and then sought a further stay of the writ to allow a foreshadowed application to appeal the dismissal of its Cross-Claim. The Plaintiff accepted that a stay of 14 days is appropriate to allow the Defendant an orderly vacation.

217. The Court may stay the enforcement of its orders: s 67 of the CPA. A successful party is entitled to the benefit of its judgment. A party seeking a stay must show a reason for one: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694. It is common in possession matters for an occupier to be granted a period of time to vacate. The length of that time is heavily dependent on the evidence.

218. The Defendant said that the length of a stay should be “fixed by evidence… not by an unsupported open-ended request”. I agree. However, the Defendant led no evidence on this issue. In its closing written submissions, the Defendant described “integrated commercial laundry machinery, utility connections and customer operations” and then warns that “abrupt execution would risk unsafe disconnection, physical damage [and] loss of contracts”. There is no affidavit evidence before me addressing any of those issues. Nothing demonstrates the time, work or cost involved in moving.

219. The Defendant has known since as early as 4 November 2025 that the Plaintiff sought possession. Nearly a year has passed since then. It has easily had sufficient time to prepare.

220. I will not stay possession pending the final accounting. The Plaintiff’s right to possession is not subject to the arithmetic of its money claim.

221. The Defendant offers to pay occupation money at the “undisputed base rate” during a stay. That offer carries little weight. I have already found that the Defendant is impecunious, and the Plaintiff has not received any money from the Defendant since April 2026. Such an offer is hollow.

222. I refuse the Defendant’s request for a further evidentiary hearing on the difficulties of its relocation. Such a request is an application to reopen, which I will not allow for the reasons I gave at [98]–[99] above. The Defendant’s opportunity to lead that evidence was the hearing before me. That time has passed.

223. The foreshadowed application concerning the dismissed Cross-Claim cannot justify a stay. No notice of motion has been filed seeking an extension of time and the setting aside of my orders. The prospect of future litigation is no reason to prolong the Defendant’s occupation of the Plaintiff’s land.

224. The Plaintiff’s proposal is fair. I will order that the writ of possession not issue before 5pm on 4 November 2026 on certain conditions.

Costs

225. Costs generally follow the event unless it appears to the Court that some other order should be made: r 42.1 of the UCPR. The Plaintiff has succeeded on both its money and possession claims. I will order the Defendant to pay the Plaintiff’s costs of the proceedings.

226. The Plaintiff seeks an order pursuant to s 98(1) of the CPA that Mr Ssebabenga pay its costs jointly and severally with the Defendant. The Plaintiff relies on Mr Ssebabenga’s conduct of the litigation, his description of himself as a director of the Defendant despite not having been one for the duration of these proceedings, the non-participation of Ms Ssegawa, the Defendant’s impecuniosity, and Mr Ssebabenga and Yoweri’s commercial interest in resisting the claim for possession.

227. The Defendant opposes the order.

228. I will not determine that application now. Mr Ssebabenga is not a party. He appeared at the hearing and represented the Defendant with leave. He has not been heard on this issue. The submissions the Defendant made against the application were its own, not Mr Ssebabenga’s. I consider it to be appropriate that Mr Ssebabenga have an opportunity to respond to the Plaintiff’s application. I will determine the non-party costs order on the papers.

Orders

229. I make the following orders:

230. Judgment for the Plaintiff for possession of Units 3 and 4, and the hardstand to Unit 4, at 30 Industrial Drive, North Boambee Valley NSW 2450, being part of the land in folio identifier 4/1090727.

231. Enforcement of order 1 is stayed until 5pm on 4 November 2026, on condition that the Defendant:

(a) pays the Plaintiff $1,523.67 by 5pm on 26 October 2026; (b) does not damage the Units or remove any fixture belonging to the Plaintiff; and (c) permits the Plaintiff, on 24 hours’ notice, to inspect the Units.

3. If the Defendant fails to comply with any condition in order 2, the stay ends immediately.
4. The Plaintiff has leave to issue a writ of possession at any time after the stay in order 2 ends.
5. The Defendant pay the Plaintiff, for each day from 22 October 2026 until it gives up possession of the Units, mesne profits calculated at $3,310.36 a month. Any amount paid under order 2(a) is to be credited against this.
6. By 4pm on 28 October 2026, the Plaintiff file and serve a schedule, consistent with these reasons, calculating the amount owed by the Defendant to 21 October 2026, comprising:

(a) rent at $3,213.98 a month, and outgoings, to 8 December 2025; (b) mesne profits at $3,310.36 a month from 8 December 2025 to 21 October 2026, giving credit for any part of the December 2025 rent that covers the period after 8 December 2025; (c) water charges and non-compliant trade waste charges passed on to the Defendant; (d) interest under s 100 of the Civil Procedure Act 2005 (NSW);

less all payments received from or on behalf of the Defendant and less $1,910.82.

7. By 4pm on 4 November 2026, the Defendant file and serve any response to the schedule, not exceeding three pages, identifying each item disputed and the reason for the dispute.

8. The amount of the money judgment will be determined on the papers.

9. The Defendant’s application for leave to reopen its case is refused.

10. The Defendant’s application for leave to amend its Defence is refused.

11. The Defendant pay the Plaintiff’s costs of the proceedings.

12. By 5pm on 28 October 2026, the Plaintiff serve on Mr Joel Ssebabenga, by email, its submissions in support of its application for an order under s 98 of the Civil Procedure Act 2005 (NSW).

13. By 4pm on 11 November 2026, Mr Ssebabenga file and serve any evidence, and any submissions not exceeding five pages, in response to the application.

14. By 4pm on 18 November 2026, the Plaintiff file and serve any submissions in reply, not exceeding two pages.

15. The application in order 12 will be determined on the papers, unless the Court otherwise orders.

16. Liberty to apply on two business days’ notice.

17. The Court notes:

18. The Plaintiff did not file its closing written submissions by the time ordered.

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Amendments

21 October 2026

Correction to cases cited in cover sheet.

26 October 2026

Typographical corrections to order (6) and [147].