Holmes v Evans [2018] NSWSC 260

Holmes v Evans [2018] NSWSC 260

The plaintiff, as registered proprietor, is entitled to possession where no contrary equities are established and no agreement for occupation exists. The defendant made no substantial contribution and has no equitable interest. Mesne profits are awarded as damages from date vacant possession was demanded until possession is recovered.

Parties
Plaintiff: Natalie Holmes; Defendant: John Evans
Jurisdiction
Australia
Judgment Date
02 March 2018
Procedural Posture
Motion for Summary Judgment / Ex Tempore Judgment on Motion for Summary Judgment
Outcome
Judgment for plaintiff; possession of the property ordered; writ of possession to issue; mesne profits awarded; costs to plaintiff.
Legal Topics
Possession of Land, Mesne Profits, Summary Judgment
Property Law Civil Procedure Possession of Land Mesne Profits Summary Judgment

Case Brief

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Parties

Natalie Holmes

Plaintiff

John Evans

Defendant

Procedural Posture

Motion for Summary Judgment / Ex Tempore Judgment on Motion for Summary Judgment

Legal Issues

  1. 1 Whether the plaintiff is entitled to possession of the property at 44 Arthur Street, Wellington, NSW
  2. 2 Whether the defendant had any equitable claim to the property (e.g., resulting trust)
  3. 3 Entitlement to mesne profits for occupation after demand for possession

Ratio Decidendi

The plaintiff, as registered proprietor, is entitled to possession where no contrary equities are established and no agreement for occupation exists. The defendant made no substantial contribution and has no equitable interest. Mesne profits are awarded as damages from date vacant possession was demanded until possession is recovered.

Court Disposition

Judgment for plaintiff; possession of the property ordered; writ of possession to issue; mesne profits awarded; costs to plaintiff.

Orders

  • Judgment for the plaintiff for possession of land comprised in DP 5/509395 being the land situated at and known as 44 Arthur Street, Wellington NSW 2820.
  • Leave to the plaintiff to issue a writ of possession in respect of land comprised in DP 5/509395 being the land situated at and known as 4 Arthur Street, Wellington NSW 2820 forthwith.