Helou v M & J Enterprises & Ors [2016] NSWSC 1202

Helou v M & J Enterprises & Ors [2016] NSWSC 1202

Judgment for possession is entered for the plaintiff as registered proprietor, without prejudice to rights under cross-claim, because even accepting defendants’ version, no basis is shown to deny possession where any right of defendants is in personam and contract terminated; adjournment and amendment of cross-claim permitted in the interests of justice to identify and resolve true issues between parties.

Jurisdiction
Australia
Judgment Date
24 August 2016
Procedural Posture
Civil / Interlocutory Orders and Partial Judgment
Outcome
Judgment for possession for plaintiff by consent; cross-claim severed and adjourned; monetary claim and amended cross-claim adjourned to be heard together; orders made for costs and further management steps.
Legal Topics
['judgment for Possession' 'adjournment to Amend Cross Claim' 'specific Performance' 'cross Claims' 'restitution' 'costs']
['real Property' 'civil Procedure'] ['judgment for Possession' 'adjournment to Amend Cross Claim' 'specific Performance' 'cross Claims' 'restitution' 'costs']

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Procedural Posture

Civil / Interlocutory Orders and Partial Judgment

Legal Issues

  1. 1 ['Whether plaintiff is entitled to judgment for possession of property' 'Whether defendants have an enforceable claim under a deed of 29 November 2012 and subsequent contracts' 'Whether to allow adjournment and amendment of cross-claim' 'Whether claim for specific performance or restitution can proceed']

Ratio Decidendi

Judgment for possession is entered for the plaintiff as registered proprietor, without prejudice to rights under cross-claim, because even accepting defendants’ version, no basis is shown to deny possession where any right of defendants is in personam and contract terminated; adjournment and amendment of cross-claim permitted in the interests of justice to identify and resolve true issues between parties.

Court Disposition

Judgment for possession for plaintiff by consent; cross-claim severed and adjourned; monetary claim and amended cross-claim adjourned to be heard together; orders made for costs and further management steps.

Orders

  • ['Sever cross-claim for separate hearing and adjourn for hearing on date to be fixed by Registrar.' 'By consent, judgment for plaintiff for possession of land at YY XXXXX Rd, Tahmoor, NSW, being the whole of land in certificate of title folio identifier 10/10849.' "Adjourn plaintiff's claim for monetary relief to be...