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

1. 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.

1. 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.

1. 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.

1. 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, live in Lindbrook, which is a heritage cottage. They make use of about one acre of a 75 acre property. The defendants also state that they make use of "easements and other areas ... for a variety of purposes"

1. The defendants allege that they have organic and natural rights of possession, and the legal principle of estoppel is applicable. They plead promissory estoppel, estoppel by silence, estoppel by delay, estoppel by acquiescence. They also refer to natural justice and adverse possession.

1. On 1 February 2001, the matter was listed in the Registrar's list when the Registrar adjourned the matter for hearing today. The first defendant appeared before the Registrar. The Registrar noted that the first defendant advised he would not attend on the next occasion. Nor would his wife attend. The Registrar advised first defendant that the matter would be referred to the Duty Judge or Associate Judge on 8 February 2011 for hearing.

1. The second defendant, in her affidavit (Ex A), says that she committed inheritance money from her grandmother into improving and restoring the heritage cottage. The first defendant also says that he has carried out some work to improve the condition property.

1. I had contemplated adjourning the matter so that the defendants could appear and argue whether in fact they had a claim for equitable compensation. However, they are not in attendance today, they were called outside both the Registrar's court and this court. It is now 10.35 am and I have just called it again and there is no appearance.

1. The defendants have faxed a cover letter dated 7 February 2011 together with their "Summary Points of Argument for 8 th February 2011". They request an order that the plaintiff's motion for summary judgment should be struck out. The defendants continue:

"The plaintiff's Statement of Claim sought to have a defence filed in response within 28 days. Such a defence, requested by the plaintiff, was duly filed by the defendants, and now the plaintiff no longer wants a defence because "he got more than he bargained for".

1. The defendants also state they that the notice of motion is defective; their defence is honest, well argued and valid. I think essentially they are requesting that the notice of motion be struck out and the matter proceed to trial.

1. The defence was filed on 29 November 2010. In my view, the defendants have had an opportunity, particularly when they appeared before the Registrar last week, to firstly put on a cross claim seeking equitable compensation and secondly, to amend their defence. The defence is struck out. They have chosen not to attend and not to make amendments, so I will make the orders in the notice of motion.

1. I enter judgment in accordance with paragraph one of the statement of claim.

1. I am not going to issue a writ of possession to take effect forthwith. I grant leave to issue a writ of possession. Such writ not to issue until after 8 March 2011. The usual costs order will follow. The defendants are to pay plaintiff's costs of the proceedings.

1. If the defendants wanted to bring a claim for equitable compensation, they can still do so by separate proceedings. Before doing so, they should seek legal advice to ascertain whether they have such a claim.

The Court orders:

(1)The defence of the first and second defendants is struck out.

(2)It is adjudged that there be judgment for the plaintiff for possession of the land 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.

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