Bognar v Bognar

[2014] NSWSC 706

Supreme Court

New South Wales

Medium Neutral Citation:

Bognar v Bognar [2014] NSWSC 706

Hearing dates:

30 May 2014

Decision date:

30 May 2014

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Defence filed on 24 March 2014 is struck out.

2. The proceedings are adjourned to 11 June 2014.

3. The Plaintiff is not to move for default judgment until after 11 June 2014.

Catchwords:

REAL PROPERTY - possession of land - defendant alleged to be trespasser - defence alleging agreement to pay money for right of occupation - failure of defendant to comply with order for provision of particulars - no appearance of defendant - defence struck out - stay on plaintiff obtaining default judgment until adjourned date

Category:

Interlocutory applications

Parties:

Matthew Stephen Bognar (Plaintiff)
Stephen Joseph Bognar (Defendant)

Representation:

Counsel:
R Bianchi (Plaintiff)
No appearance (Defendant)
Solicitors:
Robert Webley & Associates (Plaintiff)
Self represented (Defendant)

File Number(s):

2014/57625

Judgment

1. These proceedings were commenced on 24 February, 2014. The Plaintiff is the registered proprietor of the property at 531 Princes Highway, Woonona. The Statement of Claim asserted that the Defendant illegally occupies part of the premises. The Plaintiff says that he has requested the Defendant to vacate the premises, but the Defendant has refused to do so and has remained in occupation.

1. In a Defence filed on 24 March 2014 by the Defendant acting for himself, he denied that he was in illegal occupation of the premises. He says an agreement was made with the Plaintiff on 4 August 2010, that stipulated that he would pay the Plaintiff the $120,000 towards the purchase of the property to provide a residence for his father, who was approaching retirement age. It is said that it was further agreed that the house, or that part of it which was described as 531A Princes Highway, would be leased to cover the costs of the mortgage loan.

1. The proceedings have been before the Registrar on two occasions. On 29 April, the second of those occasions, the Registrar ordered that the Defendant was to provide particulars of his defence by 9 May.

1. The matter came before me for early judicial directions on 16 May and the Defendant appeared. I asked him if he had paid the $120,000 that he referred to in his Defence. He said that he had and that it was done four years ago. The Defendant also told me that he was in the process of obtaining finance to be able to purchase the property.

1. He said that he had not, however, provided the particulars of the Defence.

1. On that occasion I informed him that I would stand the matter over for two weeks, to today, and that he either was to have something concrete to show in terms of an agreement for finance and sale, or he was to have provided the particulars that should have been provided by 9 May. I said to him that if he did not have one or other of those matters he ran the risk that the defence might be struck out.

1. There is no appearance for the Defendant this morning. I am informed by Ms Bianchi, who appears for the Plaintiff, that contrary to what the Defendant told me, the $120,000 has never been paid. In any event, particulars of the details of the payment have been sought from him, but not provided. Nor has any evidence been provided to the Plaintiff about finance or a contract of sale.

1. This matter was originally listed at 2 o'clock today. The listing was moved to 9.30. My Associate sent an email to the Defendant who replied noting what had been said and providing some information about a contract of sale and some difficulties he was having in that regard.

1. In the circumstances where there is no appearance and where the particulars have not been provided as directed, and where nothing has been provided to the Plaintiff or the Court in terms of finance or a contract of sale, it seems to me that the Defence ought to be struck out.

1. Accordingly, the Defence filed on 24 March 2014 is struck out. The proceedings are adjourned to 11 June 2014. The Plaintiff is not to move for default judgment until after 11 June 2014.

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Decision last updated: 30 May 2014