William Honner as Trustee for Sale of 8 Saiala Road, East Killara NSW 2071 v Chow [2023] NSWSC 1346

William Honner as Trustee for Sale of 8 Saiala Road, East Killara NSW 2071 v Chow [2023] NSWSC 1346

Because the plaintiffs were trustees for sale appointed under s 66G of the Conveyancing Act 1919 (NSW), the defendant's former proprietary rights were converted into an interest in the proceeds of sale and did not justify continued occupation. Joyce Hoi Zee Au did not establish any interest in the land sufficient to be joined to proceedings seeking only possession, and the defence disclosed no defence to the plaintiffs' claim for possession. The plaintiffs were therefore entitled to judgment for possession and the defence was struck out.

Jurisdiction
Australia
Judgment Date
08 November 2023
Procedural Posture
Possession of Land Proceedings / Notice of Motion for Joinder, Striking Out of Defence, and Judgment for Possession
Outcome
Notice of motion dismissed; defence struck out; judgment for the plaintiffs for possession; leave granted to issue writ of possession with delayed execution; costs ordered against the defendant and the applicant on the motion.
Legal Topics
['possession of Land' 'trustees for Sale Under S 66 G of the Conveyancing Act 1919 (nsw)' 'joinder of Occupier' 'striking Out Defence' 'writ of Possession' 'costs']
['land Law' 'civil Procedure'] ['possession of Land' 'trustees for Sale Under S 66 G of the Conveyancing Act 1919 (nsw)' 'joinder of Occupier' 'striking Out Defence' 'writ of Possession' 'costs']

Case Brief

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Procedural Posture

Possession of Land Proceedings / Notice of Motion for Joinder, Striking Out of Defence, and Judgment for Possession

Legal Issues

  1. 1 ['Whether Joyce Hoi Zee Au should be joined as a defendant to the possession proceedings after service of a Notice to Occupier.' 'Whether expenditure of money on the land established an interest justifying joinder in proceedings seeking possession.' "Whether the defence filed 27 September 2023 disclosed any defence to the plaintiffs' claim for possession." 'Whether trustees for sale appointed under s 66G of the Conveyancing Act 1919 (NSW) were entitled to possession of the land.']

Ratio Decidendi

Because the plaintiffs were trustees for sale appointed under s 66G of the Conveyancing Act 1919 (NSW), the defendant's former proprietary rights were converted into an interest in the proceeds of sale and did not justify continued occupation. Joyce Hoi Zee Au did not establish any interest in the land sufficient to be joined to proceedings seeking only possession, and the defence disclosed no defence to the plaintiffs' claim for possession. The plaintiffs were therefore entitled to judgment for possession and the defence was struck out.

Court Disposition

Notice of motion dismissed; defence struck out; judgment for the plaintiffs for possession; leave granted to issue writ of possession with delayed execution; costs ordered against the defendant and the applicant on the motion.

Orders

  • ['Notice of Motion filed by Joyce Hoi Zee Au dated 2 November 2023 is dismissed.' 'Order pursuant to rule 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) that the Defence filed 27 September 2023 be struck out.' 'Judgment for the plaintiffs for possession the whole of the land comprised in certificate of title...