Felsch v Hetherington [2023] NSWSC 1411

Felsch v Hetherington [2023] NSWSC 1411

Because r 16.8 of the Uniform Civil Procedure Rules 2005 (NSW) permits default judgment on one claim but not another, and the defendant had been served, had filed no notice of appearance or defence, had repeatedly not appeared, and had not complied with notices to vacate, the plaintiffs were entitled to default judgment for possession while the mesne profits claim was adjourned.

Jurisdiction
Australia
Judgment Date
20 November 2023
Procedural Posture
Claim for Possession of Land and Mesne Profits / Notice of Motion Seeking Default Judgment for Possession
Outcome
Default judgment for the plaintiffs for possession; balance of the Statement of Claim stood over for further directions.
Legal Topics
['possession of Land' 'executors' 'default Judgment' 'mesne Profits' 'writ of Possession']
['land Law' 'civil Procedure' 'succession'] ['possession of Land' 'executors' 'default Judgment' 'mesne Profits' 'writ of Possession']

Case Brief

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Procedural Posture

Claim for Possession of Land and Mesne Profits / Notice of Motion Seeking Default Judgment for Possession

Legal Issues

  1. 1 ['Whether default judgment could be given for possession of land while the claim for mesne profits was stood over for later determination.' 'Whether the plaintiffs, as executors, were entitled to default judgment for possession where the defendant had not filed a notice of appearance or defence and had not complied with notices to vacate.']

Ratio Decidendi

Because r 16.8 of the Uniform Civil Procedure Rules 2005 (NSW) permits default judgment on one claim but not another, and the defendant had been served, had filed no notice of appearance or defence, had repeatedly not appeared, and had not complied with notices to vacate, the plaintiffs were entitled to default judgment for possession while the mesne profits claim was adjourned.

Court Disposition

Default judgment for the plaintiffs for possession; balance of the Statement of Claim stood over for further directions.

Orders

  • ['Judgment for plaintiffs for possession of the land described as Lots 2 & 4 Deposited Plan 14117 (Auto Consol 4268-68) and known as 48 Bogan Street, Parkes NSW.' 'Leave to the plaintiffs to issue a writ of possession.' 'Stand over the balance of the Statement of Claim for further directions before Davies J at...