C88 Project Pty Ltd (In Liquidation) (Controller Appointed) v The Occupier [2023] NSWSC 135

C88 Project Pty Ltd (In Liquidation) (Controller Appointed) v The Occupier [2023] NSWSC 135

Because the plaintiff was the registered proprietor of the premises, the occupier could not be identified despite enquiries, notice of the proceedings had been given including by SMS, no appearance was made, and r 6.1A permitted possession proceedings without naming a defendant, the Court was satisfied that the occupier had no right to occupy the premises and that the plaintiff's liquidator had an immediate right to possession.

Jurisdiction
Australia
Judgment Date
02 March 2023
Procedural Posture
Proceedings for Possession of Land / Application for Default Judgment and Leave to Issue Writ of Possession
Outcome
Judgment for the plaintiff for possession of the land, with leave to issue a writ of possession.
Legal Topics
['commencement of Proceedings Without Naming a Defendant' 'possession of Land' 'unidentified Occupier' "registered Proprietor's Right to Possession" 'writ of Possession']
['civil Procedure' 'land Law'] ['commencement of Proceedings Without Naming a Defendant' 'possession of Land' 'unidentified Occupier' "registered Proprietor's Right to Possession" 'writ of Possession']

Case Brief

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Procedural Posture

Proceedings for Possession of Land / Application for Default Judgment and Leave to Issue Writ of Possession

Legal Issues

  1. 1 ['Whether judgment for possession may be given where no defendant is named in proceedings for possession of land against an unidentified occupier.' 'Whether the plaintiff, as registered proprietor acting by its liquidator, had an immediate right to possession of the premises.' 'Whether leave should be granted to issue a writ of possession to enforce the judgment.']

Ratio Decidendi

Because the plaintiff was the registered proprietor of the premises, the occupier could not be identified despite enquiries, notice of the proceedings had been given including by SMS, no appearance was made, and r 6.1A permitted possession proceedings without naming a defendant, the Court was satisfied that the occupier had no right to occupy the premises and that the plaintiff's liquidator had an immediate right to possession.

Court Disposition

Judgment for the plaintiff for possession of the land, with leave to issue a writ of possession.

Orders

  • ['Dispense with any provision in the Uniform Civil Procedure Rules 2005 (NSW) that would prevent judgment being given in favour of the plaintiff where no defendant is named in the proceedings.' 'Judgment for the plaintiff for possession of the land comprised in the certificate of title reference 264/SP90944, being...