Bailey v Boyd [2018] NSWSC 477

Bailey v Boyd [2018] NSWSC 477

The only defence raised was that earlier orders were a nullity, which had already been decided against the defendants up to the Court of Appeal. No special leave was sought from the High Court, and there was no evidence before the court of any prospective application being made. The joint defence disclosed no arguable case and should be struck out; consequently, summary judgment was appropriate for possession. Indemnity costs were warranted given the unreasonable conduct of defending in the face of binding authority.

Parties
First Plaintiff: Liam Bailey; Second Plaintiff: Timothy Daley; First Defendant: Ian Geoffrey Boyd; Second Defendant: Dawn Kathleen Boyd
Jurisdiction
Australia
Judgment Date
12 April 2018
Procedural Posture
Possession Proceedings / Summary Judgment/strike Out Application
Outcome
Plaintiffs' application granted; defence struck out; summary judgment for possession; costs awarded.
Legal Topics
Trustees for Sale, Constructive Trust, Strike Out of Defence, Summary Judgment, Indemnity Costs
Real Property Equity Civil Procedure Trustees for Sale Constructive Trust Strike Out of Defence Summary Judgment Indemnity Costs

Case Brief

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Parties

Liam Bailey

First Plaintiff

Timothy Daley

Second Plaintiff

Ian Geoffrey Boyd

First Defendant

Dawn Kathleen Boyd

Second Defendant

Procedural Posture

Possession Proceedings / Summary Judgment/strike Out Application

Legal Issues

  1. 1 Whether the defence should be struck out for untenable grounds
  2. 2 Whether summary judgment should be granted for possession
  3. 3 Whether indemnity costs should be awarded

Ratio Decidendi

The only defence raised was that earlier orders were a nullity, which had already been decided against the defendants up to the Court of Appeal. No special leave was sought from the High Court, and there was no evidence before the court of any prospective application being made. The joint defence disclosed no arguable case and should be struck out; consequently, summary judgment was appropriate for possession. Indemnity costs were warranted given the unreasonable conduct of defending in the face of binding authority.

Court Disposition

Plaintiffs' application granted; defence struck out; summary judgment for possession; costs awarded.

Orders

  • Pursuant to UCPR r 14.28, the joint defence filed and served by the first and second defendants on 25 February 2018 is struck out.
  • Judgment for the plaintiff against the first and second defendants for possession of the property comprised in 10/DP28150 being the land situated at 12 Fletcher Avenue Miranda.