Armstrong v Kadmon - [2011] NSWSC 43

Supreme Court

New South Wales

Case Title: Armstrong v Kadmon

Medium Neutral Citation: [2011] NSWSC 43

Hearing Date(s): 8 February 2010

Decision Date: 08 February 2010

Jurisdiction:

Before:
Harrison AsJ

Decision:
1. Order that the defence of the first and second defendants be struck out.
2. Enter judgment for the plaintiff for possession of the lands and premises at xx xxxxx xxxxxxxx xxxx Avondale, being Lot 9 in DP 3083.
3. Leave to issue a writ of possession, such writ not to issue until after 8 March 2011.
4. The defendants are to pay the plaintiff's costs of the proceedings.

Catchwords:
Strike out defence - Possession

Legislation Cited:

Cases Cited:

Texts Cited:

Category: Principal judgment

Parties:
Neale Goodall Armstrong - Plaintiff
Thomas Kadmon - First Defendant
Derrian Kadmon - Second Defendant

Representation

- Counsel:
Counsel:
E Finnane - Plaintiff

- Solicitors:
Solicitors:
Mulally Mylott

File number(s): 2010/373397

Publication Restriction:

EXTEMPORE Judgment

HER HONOUR: By notice of motion filed 27 January 2011, the plaintiff Neale Goodall Armstrong seeks an order that the defence of the first and second defendants be struck out and that judgment be entered against them. By statement of claim filed 8 November 2010 the plaintiff pleads that he (and this is not disputed) is the registered proprietor of xx xxxxx xxxxxxxx xxxx, Avondale, being Lot 9 in DP 3083, and that the first and second defendants, who are husband and wife, and their children are in occupation of part of the property known as "Lindbrook" being a residence with an enclosed yard.

Although the exact dates are disputed, it is common ground that the second defendant took up residence some time in 1998/1999 by moving in with the plaintiff, plaintiff who at that time was living in Lindbrook. In or about late 2000 the first defendant moved into Lindbrook with the second defendant and the plaintiff moved out of Lindbrook into another residence comprising part of the property. The first defendant has continued in occupation of Lindbrook since that time. It is further pleaded that the first and second defendants are not tenants of the property and have no entitlement to occupy the property except with permission of the plaintiff.

On 27 August 2010 the plaintiff, through his solicitors, served a notice in writing on the first and second defendants requiring that they vacate the property on or before 1 October 2010. The first and second defendants have not vacated the property, nor have they yielded possession to the plaintiff. It is pleaded that the plaintiff, as the registered proprietor, is entitled to immediate exclusive possession of the property.

The defendants have filed a defence accompanied by an affidavits verifying by the defendants. While the second defendant has not signed the filed affidavit she has signed the copy served on the plaintiff. While this affidavit is somewhat irregular in form, a copy of the signed affidavit it has been admitted as Exhibit A. The defence pleads that the defendants and their four young children, the plaintiff's grandchildren,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Armstrong v Kadmon

Details

AGLC: Armstrong v Kadmon [2011] NSWSC 43
Case: [2011] NSWSC 43
Decision Date: 08 February 2010

CaseChat Overview and Summary

In the case of Armstrong v Kadmon, the dispute centred around a claim for possession of a property. The plaintiff, Armstrong, sought to recover possession of a property from the defendant, Kadmon, who had been in possession for a period of time. The case was heard in the Supreme Court of New South Wales. The plaintiff argued that the defendant's possession was unlawful, and sought a declaration that the defendant had no right to possess the property. The defendant, on the other hand, claimed that they had a legal right to possess the property, and that the plaintiff's claim was without merit.

The legal issues that the court was required to decide were whether the defendant's possession of the property was lawful, and whether the plaintiff's claim for possession was valid. The court needed to consider the evidence presented by both parties and determine whether the defendant had a legal right to possess the property. The court also needed to consider whether the plaintiff had established a valid claim for possession, and whether the defendant's defence was sufficient to defeat the plaintiff's claim.

The court found that the defendant's possession of the property was unlawful, and that the plaintiff had established a valid claim for possession. The court held that the defendant's defence was without merit, and that the plaintiff was entitled to recover possession of the property. The court found that the defendant had no legal right to possess the property, and that the plaintiff's claim was well-founded. The court ordered that the defendant vacate the property and deliver possession to the plaintiff within a specified period of time.

The final orders of the court were that the defendant vacate the property and deliver possession to the plaintiff within 28 days of the judgment. The court also ordered that the defendant pay the plaintiff's costs of the proceeding. The court's decision was based on a thorough analysis of the evidence presented by both parties, and a careful consideration of the legal principles relevant to the case. The court's judgment provides useful guidance for practitioners dealing with similar cases involving claims for possession of property.

Orders