Terabond Pty Limited v Tsilfidis (No 2) [2023] NSWSC 1002

Terabond Pty Limited v Tsilfidis (No 2) [2023] NSWSC 1002

The plaintiff was entitled to default judgment for possession because the defendant was in default, had filed no Defence or evidence, and had notice of the proceedings; the oral occupation agreement was not a residential tenancy agreement because the defendant was permitted to occupy without payment or value; the affidavit evidence satisfied the applicable requirements of rr 16.4 and 36.8 of the Uniform Civil Procedure Rules 2005; service of Form 93 was dispensed with under s 14 of the Civil Procedure Act 2005; and the evidence supported leave to issue a writ for possession under r 39.1. Judgment for mesne profits was not entered because the amount could not yet be ascertained, and costs...

Jurisdiction
Australia
Judgment Date
22 August 2023
Procedural Posture
Civil Proceedings for Possession of Land / Notice of Motion for Default Judgment
Outcome
Default judgment entered for the plaintiff for possession of the land; declaratory and restraining relief granted; leave granted to issue a writ for possession; costs ordered for the plaintiff as agreed or assessed; mesne profits claim stood before the Registrar.
Legal Topics
['possession of Land' 'default Judgment' 'residential Tenancy Agreement' 'writ for Possession' 'mesne Profits' 'costs']
['civil Procedure' 'property Law'] ['possession of Land' 'default Judgment' 'residential Tenancy Agreement' 'writ for Possession' 'mesne Profits' 'costs']

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Procedural Posture

Civil Proceedings for Possession of Land / Notice of Motion for Default Judgment

Legal Issues

  1. 1 ['Whether the plaintiff was entitled to default judgment for possession of the land against the defendant.' "Whether the defendant's occupation arose under a residential tenancy agreement within the meaning of the Residential Tenancies Act 2010." 'Whether the requirements of the Uniform Civil Procedure Rules 2005 for default judgment for possession of land and leave to issue a writ for possession were satisfied.' 'Whether judgment for mesne profits in the amount of $44,000 should be entered at the hearing.' 'Whether costs should be ordered in a specified sum or as agreed or assessed.']

Ratio Decidendi

The plaintiff was entitled to default judgment for possession because the defendant was in default, had filed no Defence or evidence, and had notice of the proceedings; the oral occupation agreement was not a residential tenancy agreement because the defendant was permitted to occupy without payment or value; the affidavit evidence satisfied the applicable requirements of rr 16.4 and 36.8 of the Uniform Civil Procedure Rules 2005; service of Form 93 was dispensed with under s 14 of the Civil Procedure Act 2005; and the evidence supported leave to issue a writ for possession under r 39.1. Judgment for mesne profits was not entered because the amount could not yet be ascertained, and costs...

Court Disposition

Default judgment entered for the plaintiff for possession of the land; declaratory and restraining relief granted; leave granted to issue a writ for possession; costs ordered for the plaintiff as agreed or assessed; mesne profits claim stood before the Registrar.

Orders

  • ['Judgment for the plaintiff for possession of the land comprised in folio identifier 1/1285157 being the land situate at and known as 873-879 New Canterbury Road, Dulwich Hill, NSW, 2203.' 'Declare that the defendant has no right to enter, occupy, or remain upon the land comprised in folio identifier 1/1285157...