Curry v Curry [2017] NSWSC 461

Curry v Curry [2017] NSWSC 461

Because probate of the relevant wills had been granted and had not been set aside, and the defendants identified no lease, licence or other arrangement giving them a right to occupy the property, their defences did not disclose any defence to the plaintiff registered proprietor's claim for possession and were struck out.

Jurisdiction
Australia
Judgment Date
21 April 2017
Procedural Posture
Claim for Possession of Land / Application Resulting in Defences Being Struck Out, Leave to Obtain Default Judgment, and Leave to Issue a Writ of Possession
Outcome
Defences struck out; plaintiff granted leave to obtain default judgment and leave to issue a writ of possession, not to be executed before 16 June 2017.
Legal Topics
['possession of Land' 'registered Proprietor' 'will and Probate' 'strike Out of Defences' 'default Judgment' 'writ of Possession']
['real Property' 'probate and Estates' 'civil Procedure'] ['possession of Land' 'registered Proprietor' 'will and Probate' 'strike Out of Defences' 'default Judgment' 'writ of Possession']

Case Brief

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Procedural Posture

Claim for Possession of Land / Application Resulting in Defences Being Struck Out, Leave to Obtain Default Judgment, and Leave to Issue a Writ of Possession

Legal Issues

  1. 1 ["Whether the defendants' pleaded claim based on an alleged later will disclosed a defence to the plaintiff registered proprietor's claim for possession." 'Whether the plaintiff was entitled to default judgment and a writ of possession after the defences were struck out.']

Ratio Decidendi

Because probate of the relevant wills had been granted and had not been set aside, and the defendants identified no lease, licence or other arrangement giving them a right to occupy the property, their defences did not disclose any defence to the plaintiff registered proprietor's claim for possession and were struck out.

Court Disposition

Defences struck out; plaintiff granted leave to obtain default judgment and leave to issue a writ of possession, not to be executed before 16 June 2017.

Orders

  • ['The Defences filed 9 February 2017 are struck out.' 'The Plaintiff is granted leave to obtain default judgment.' 'Leave to the Plaintiff issue a writ of possession such writ not to be executed before 16 June 2017.']