Kennedy v Kennedy [2018] NSWSC 1087

Kennedy v Kennedy [2018] NSWSC 1087

The defendant's three defences did not disclose any legal defence or right to possession against the executors' claim to recover estate property. Given the prior opportunities before the Registrar, the filing of three similar or identical defences, the defendant's non-appearance, and the small size of the estate, there was no purpose in giving a further opportunity to replead. The defences were therefore struck out and the plaintiffs were given liberty to move for default judgment and leave to issue a writ of possession.

Jurisdiction
Australia
Judgment Date
13 July 2018
Procedural Posture
Possession of Land Claim by Executors of an Estate / Procedural Ruling on Defences and Leave to Move for Default Judgment
Outcome
Defences struck out; plaintiffs granted leave to move for default judgment on the amended statement of claim and to issue a writ of possession.
Legal Topics
['possession of Land' 'executors Getting in Estate Property' 'strike Out of Defences' 'default Judgment' 'writ of Possession']
['land Law' 'succession' 'civil Procedure'] ['possession of Land' 'executors Getting in Estate Property' 'strike Out of Defences' 'default Judgment' 'writ of Possession']

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Procedural Posture

Possession of Land Claim by Executors of an Estate / Procedural Ruling on Defences and Leave to Move for Default Judgment

Legal Issues

  1. 1 ["Whether the defendant's defences disclosed any defence to the executors' claim for possession of estate property." 'Whether the defences should be struck out and the plaintiffs given leave to move for default judgment and issue a writ of possession.']

Ratio Decidendi

The defendant's three defences did not disclose any legal defence or right to possession against the executors' claim to recover estate property. Given the prior opportunities before the Registrar, the filing of three similar or identical defences, the defendant's non-appearance, and the small size of the estate, there was no purpose in giving a further opportunity to replead. The defences were therefore struck out and the plaintiffs were given liberty to move for default judgment and leave to issue a writ of possession.

Court Disposition

Defences struck out; plaintiffs granted leave to move for default judgment on the amended statement of claim and to issue a writ of possession.

Orders

  • ['Defence to Amended Statement of Claim filed 23 June 2018 struck out.' 'Defences filed 13 April 2018 and 6 June 2018 struck out.' 'Leave to the plaintiff to move for default judgment on Amended Statement of Claim and to issue a writ of possession.']