Girdham v Girdham [2016] NSWSC 1694

Girdham v Girdham [2016] NSWSC 1694

Because the defendant consented to judgment for possession and most consequential orders, the plaintiff was entitled to judgment for possession and leave to issue a writ of possession. The appropriate period for the defendant to vacate was 28 days after receiving written notice that contracts for sale had been exchanged, balancing the Trustee's need for certainty at settlement against prejudice to the defendant and assuming a typical 42-day settlement period. Costs were ordered in favour of the plaintiff but not payable before conclusion of the cross-claim proceedings.

Jurisdiction
Australia
Judgment Date
29 November 2016
Procedural Posture
Possession Proceedings / Notice of Motion for Summary Judgment and Directions on Cross Claim
Outcome
Judgment for the plaintiff for possession; defendant ordered to vacate within 28 days of written notice of exchange of contracts; plaintiff granted leave to issue a writ of possession; defendant ordered to pay costs with payment deferred; cross-claim referred to mediation.
Legal Topics
['possession of Land' 'summary Judgment' 'writ of Possession' 'vacant Possession' 'costs' 'mediation']
['real Property' 'civil Procedure'] ['possession of Land' 'summary Judgment' 'writ of Possession' 'vacant Possession' 'costs' 'mediation']

Case Brief

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Procedural Posture

Possession Proceedings / Notice of Motion for Summary Judgment and Directions on Cross Claim

Legal Issues

  1. 1 ['Whether to make orders for judgment for possession where the defendant consented to most orders but sought amendments to the timing of vacation of the property.' 'Whether 7 days from written notice of exchange of contracts or 28 days from written notice of exchange of contracts was a reasonable period for the defendant to vacate the property.' "Whether the defendant's costs liability should be payable before conclusion of the proceedings on the cross-claim." 'Whether the cross-claim proceedings should be referred to mediation.']

Ratio Decidendi

Because the defendant consented to judgment for possession and most consequential orders, the plaintiff was entitled to judgment for possession and leave to issue a writ of possession. The appropriate period for the defendant to vacate was 28 days after receiving written notice that contracts for sale had been exchanged, balancing the Trustee's need for certainty at settlement against prejudice to the defendant and assuming a typical 42-day settlement period. Costs were ordered in favour of the plaintiff but not payable before conclusion of the cross-claim proceedings.

Court Disposition

Judgment for the plaintiff for possession; defendant ordered to vacate within 28 days of written notice of exchange of contracts; plaintiff granted leave to issue a writ of possession; defendant ordered to pay costs with payment deferred; cross-claim referred to mediation.

Orders

  • ['Order that there be judgment for the plaintiff for possession of the land comprised in Folio Identifier 27/32523, being the land situated at and known as 11A Nilo Street, Lorn, in the State of New South Wales.' 'Order that the defendant is to vacate the property within 28 days of receiving written notice that...