Belle (as executor of the estate of the late Shirley May Belle) v Belle [2019] NSWSC 1165

Belle (as executor of the estate of the late Shirley May Belle) v Belle [2019] NSWSC 1165

In the unusual circumstances, including the defendant's potentially valuable interest in the property and the absence of sufficient assurance that her failure to respond or appear was conscious or informed, the Court was not prepared to proceed further with the plaintiff's application in her absence notwithstanding UCPR 16.3.

Jurisdiction
Australia
Judgment Date
26 September 2019
Procedural Posture
Supreme Court of New South Wales Common Law Proceedings for Possession of Land and Damages for Trespass/mesne Profits / Plaintiff's Application for Assessment of Damages for Mesne Profits After Default Judgment and Issue of a Writ of Possession; Defendant Absent
Outcome
Application not proceeded with in the defendant's absence; matter to be listed at a convenient date and costs of 5 September 2019 reserved.
Legal Topics
['default Judgment' 'writ of Possession' 'mesne Profits' 'right of Occupation Under a Will' 'proceeding in the Absence of a Defendant' 'service and Notice']
['civil Procedure' 'succession and Estates' 'property Law' 'trusts'] ['default Judgment' 'writ of Possession' 'mesne Profits' 'right of Occupation Under a Will' 'proceeding in the Absence of a Defendant' 'service and Notice']

Case Brief

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Procedural Posture

Supreme Court of New South Wales Common Law Proceedings for Possession of Land and Damages for Trespass/mesne Profits / Plaintiff's Application for Assessment of Damages for Mesne Profits After Default Judgment and Issue of a Writ of Possession; Defendant Absent

Legal Issues

  1. 1 ["Whether the Court should proceed with the plaintiff's application in the absence of the defendant." "Whether the defendant's failure to respond to correspondence or served process was a conscious or informed decision in circumstances where she had a potentially valuable interest in the property."]

Ratio Decidendi

In the unusual circumstances, including the defendant's potentially valuable interest in the property and the absence of sufficient assurance that her failure to respond or appear was conscious or informed, the Court was not prepared to proceed further with the plaintiff's application in her absence notwithstanding UCPR 16.3.

Court Disposition

Application not proceeded with in the defendant's absence; matter to be listed at a convenient date and costs of 5 September 2019 reserved.

Orders

  • ["The matter is to be listed before Harrison J at a date convenient to the plaintiff's legal representatives." 'The plaintiff, by his solicitor, is to write to the defendant beforehand in the terms set out in the judgment, advising her of the adjourned application, enclosing the judgment, encouraging her attendance,...