Lam v Greene [2023] NSWSC 733

Lam v Greene [2023] NSWSC 733

The plaintiff, as executor with probate of the deceased's will, needed to sell the estate's sole remaining asset so the residue could be divided equally under the will. The defendant occupied the premises, refused to vacate or cooperate, filed no defence and did not appear. In those circumstances the plaintiff was entitled to default judgment for possession, but not for mesne profits.

Jurisdiction
Australia
Judgment Date
28 June 2023
Procedural Posture
Claim for Possession of Land and Mesne Profits / Default Judgment Application
Outcome
Judgment for the plaintiff for possession of the land; leave granted to issue a writ of possession not to be executed before 11 August 2023; proceedings listed for directions; liberty to apply.
Legal Topics
['possession of Land' 'executor of Deceased Estate' 'default Judgment' 'writ of Possession' 'mesne Profits']
['land Law' 'succession'] ['possession of Land' 'executor of Deceased Estate' 'default Judgment' 'writ of Possession' 'mesne Profits']

Case Brief

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Procedural Posture

Claim for Possession of Land and Mesne Profits / Default Judgment Application

Legal Issues

  1. 1 ['Whether the plaintiff was entitled to default judgment for possession of the land where no defence had been filed and the defendant had not appeared.' 'Whether default judgment should be given for mesne profits.']

Ratio Decidendi

The plaintiff, as executor with probate of the deceased's will, needed to sell the estate's sole remaining asset so the residue could be divided equally under the will. The defendant occupied the premises, refused to vacate or cooperate, filed no defence and did not appear. In those circumstances the plaintiff was entitled to default judgment for possession, but not for mesne profits.

Court Disposition

Judgment for the plaintiff for possession of the land; leave granted to issue a writ of possession not to be executed before 11 August 2023; proceedings listed for directions; liberty to apply.

Orders

  • ['Judgment for plaintiff for possession of the land described as Lot 169 in DP227284 and known as 16 Elbe Street, Seven Hills, NSW.' 'Leave to plaintiff to issue writ of possession such writ not to be executed before 11 August 2023.' 'Listed for directions before Davies J at 9:30am on 8 September 2023.' "Liberty to...