Bosganas v Bosganas

[2024] NSWSC 709

Supreme Court

New South Wales

Medium Neutral Citation:

Bosganas v Bosganas [2024] NSWSC 709

Hearing dates:

12 June 2024

Date of orders:

12 June 2024

Decision date:

12 June 2024

Jurisdiction:

Common Law

Before:

Davies J

Decision:

(1) Defence filed 9 May 2024 struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW).

(2) Any further defence to be filed by 24 June 2024.

(3) Proceedings stood over to 26 June 2024.

Catchwords:

LAND LAW – possession of land – claim by registered proprietor against occupier – where defence does not plead a defence to the claim – defence struck out

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW) r 14.28

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Lena Bosganas by her tutor Elizabeth Michael (Plaintiff)
George Bosganas (Defendant)

Representation:

Counsel:
J Horowitz (Plaintiff)
No appearance (Defendant)

Solicitors:
Horowitz & Bilinsky (Plaintiff)
FutureLegal (Defendant)

File Number(s):

2024/97347

Publication restriction:

Nil

JUDGMENT

1. These proceedings, which commenced on 14 March 2024, seek possession of a property in Fenwick Street, Bankstown. The plaintiff is the registered proprietor of the property. The defendant is one of her sons, who lives at the property. The plaintiff now resides in a nursing home. The proceedings have been brought by a tutor, who is the plaintiff's granddaughter. The property needs to be sold to pay the nursing home fees and rates and charges on the property.

2. The statement of claim pleads that on 24 January 2019 the plaintiff appointed another son, Con Bosganas, as her enduring power of attorney and enduring guardian. Con Bosganas gave a notice to the defendant on 25 January 2024 requiring him to vacate the property on or before 15 February 2024. The defendant did not do so and that led to the commencement of these proceedings.

3. The defendant filed a defence on 9 May 2024 . In it, the defendant agrees that he is in occupation of the property. The defendant denies the validity of the purported power of attorney because the defendant says the plaintiff was diagnosed with dementia prior to giving that power of attorney. However, these proceedings are not brought pursuant to the power of attorney; rather they are brought by the plaintiff through a tutor.

4. Paragraph 7 of the defence pleads that there was an agreement between the plaintiff and her late husband, the defendant's parents, that the property was to be transferred to him on their death. No particulars of that agreement are provided in the statement of claim. A request for particulars was forwarded by the plaintiff's solicitors on 13 May but there has been no response to that request for particulars.

5. There is no appearance for the defendant at the directions hearing this morning despite the defendant having solicitors acting for him.

6. The matters set out in the defence filed 9 May 2024 do not, on their face, disclose a defence to the statement of claim. Accordingly, the defence is struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW).

7. In the circumstances that there has been no appearance of the defendant this morning I will grant leave to him, if he wishes to do so, to file a further defence, such defence is to be filed and served by 24 June 2024.

8. I will stand the proceedings over to 26 June 2024 for further directions.

**********

Decision last updated: 12 June 2024