Holder v Zeiher [2014] NSWSC 556

Holder v Zeiher [2014] NSWSC 556

The Plaintiff was the legal owner and registered proprietor of the property and was entitled to possession. The Defendant's evidence was contradictory as to whether there had been a de facto relationship, no timely or adequate property adjustment application or extension of time had been made, and there was no evidence that the property was bought for the Defendant solely or that she was entitled to possession to the exclusion of the Plaintiff. Even if she might have a claim to a share of proceeds or an interest arising from contributions or a de facto relationship, that did not amount to an entitlement to possession against the registered proprietor. The Defence therefore disclosed no...

Jurisdiction
Australia
Judgment Date
14 May 2014
Procedural Posture
Real Property Possession Proceedings / Early Judicial Directions Under the Supreme Court Possession List Practice Note; Consideration Whether the Defence Disclosed a Reasonable Defence on the Merits
Outcome
Defence struck out and judgment entered for the Plaintiff for possession, with execution of the writ deferred subject to further appearance or stay application.
Legal Topics
['possession of Land' "registered Proprietor's Right to Possession" 'striking Out Defence' 'alleged De Facto Relationship' 'property Adjustment Proceedings' 'extension of Time' 'caveat']
['real Property' 'civil Procedure' 'family Law'] ['possession of Land' "registered Proprietor's Right to Possession" 'striking Out Defence' 'alleged De Facto Relationship' 'property Adjustment Proceedings' 'extension of Time' 'caveat']

Case Brief

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Procedural Posture

Real Property Possession Proceedings / Early Judicial Directions Under the Supreme Court Possession List Practice Note; Consideration Whether the Defence Disclosed a Reasonable Defence on the Merits

Legal Issues

  1. 1 ["Whether the Defendant's Defence disclosed a reasonable defence on the merits to the Plaintiff's claim for possession of land." "Whether the Defendant's assertion of a de facto relationship and prospective property adjustment proceedings in the Family Court defeated or delayed the registered proprietor's claim for possession." 'Whether there was evidence that the Defendant was entitled to possession of the property to the exclusion of the Plaintiff.']

Ratio Decidendi

The Plaintiff was the legal owner and registered proprietor of the property and was entitled to possession. The Defendant's evidence was contradictory as to whether there had been a de facto relationship, no timely or adequate property adjustment application or extension of time had been made, and there was no evidence that the property was bought for the Defendant solely or that she was entitled to possession to the exclusion of the Plaintiff. Even if she might have a claim to a share of proceeds or an interest arising from contributions or a de facto relationship, that did not amount to an entitlement to possession against the registered proprietor. The Defence therefore disclosed no...

Court Disposition

Defence struck out and judgment entered for the Plaintiff for possession, with execution of the writ deferred subject to further appearance or stay application.

Orders

  • ['The Defence filed 19 November 2013 is struck out.' 'Judgment for the Plaintiff for possession of the land comprised in certificate of title folio identifier 20/805325 known as 18 Namatjira Avenue, Londonderry, New South Wales.' 'Leave to the Plaintiff to issue a writ to enforce the judgment of the Court, such writ...