Winterbottom v Lucas [2014] NSWSC 1817

Winterbottom v Lucas [2014] NSWSC 1817

In the absence of explanation for continued failure to file defences, and given the Plaintiff's entitlement to pursue possession after re-taking of property by the First Defendant, default judgment for possession is appropriate.

Parties
Plaintiff: David John Winterbottom; First Defendant: Kevin Donald Lucas; Second Defendant: Anne Margaret
Jurisdiction
Australia
Judgment Date
17 December 2014
Procedural Posture
Interlocutory Applications / Default Judgment Application
Outcome
Default judgment for the Plaintiff for possession of land; leave to Plaintiff to move for default judgment; costs reserved; timetable set for Defendants' motions to set aside judgment.
Legal Topics
Possession of Land, Default Judgment, Failure to File Defence, Contracts Review Act 1980 (nsw)
Real Property Possession of Land Default Judgment Failure to File Defence Contracts Review Act 1980 (nsw)

Case Brief

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Parties

David John Winterbottom

Plaintiff

Kevin Donald Lucas

First Defendant

Anne Margaret

Second Defendant

Procedural Posture

Interlocutory Applications / Default Judgment Application

Legal Issues

  1. 1 Whether the Plaintiff is entitled to default judgment for possession of the property against the Defendants
  2. 2 Whether further time should be granted to the Defendants to file and serve defences

Ratio Decidendi

In the absence of explanation for continued failure to file defences, and given the Plaintiff's entitlement to pursue possession after re-taking of property by the First Defendant, default judgment for possession is appropriate.

Court Disposition

Default judgment for the Plaintiff for possession of land; leave to Plaintiff to move for default judgment; costs reserved; timetable set for Defendants' motions to set aside judgment.

Orders

  • Leave to Plaintiff to move for default judgment against Second Defendant.
  • Judgment for the Plaintiff for possession of the whole of the land comprised in Certificate of Title, Folio Identifier 147/752046, being 11 Wirreanda Road, Ingleside, NSW.