Holmes v Evans

[2018] NSWSC 260

Supreme Court

New South Wales

Medium Neutral Citation:

Holmes v Evans [2018] NSWSC 260

Hearing dates:

02 March 2018

Date of orders:

02 March 2018

Decision date:

02 March 2018

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1)   Judgment for the plaintiff for possession of land comprised in DP 5/509395 being the land situated at and known as 44 Arthur Street, Wellington NSW 2820.

 

(2)   Leave to the plaintiff to issue a writ of possession in respect of land comprised in DP 5/509395 being the land situated at and known as 4 Arthur Street, Wellington NSW 2820 forthwith.

 

(3)   The issue of a writ of possession of the land comprised in DP 5/509395 being the land situated at and known as 44 Arthur Street, Wellington NSW 2820.

 

(4)   Judgment for the plaintiff for $13,350.

 (5)   The defendant to pay the plaintiff’s costs of the proceedings.

Catchwords:

POSSESSION – plaintiff proves ownership and entitlement to possession – plaintiff and defendant originally married – no order of the Court disturbing plaintiff’s ownership – no resulting trust or factual circumstance that might arguably give rise to a resulting trust – possession ordered – leave to execute writ of possession granted – mesne profits ordered from date on which vacant possession was due to be given, in accordance with the demand made

Legislation Cited:

Uniform Civil Procedure Rules 2005, r 13.1

Cases Cited:

Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59
Hammon v O’Brien (1995) BPR 97,331
Bloch v Bloch (1981) 180 CLR 390

Category:

Principal judgment

Parties:

Natalie Holmes (Plaintiff)
John Evans (Defendant)

Representation:

Counsel:
H Mann (Plaintiff)
Submitting appearance (Defendant)

  Solicitors:
Ashurst Australia (Plaintiff)
Submitting appearance (Defendant)

File Number(s):

2017/00275759

ex Tempore Judgment

1. HIS HONOUR: Before the Court is a Motion for summary judgment pursuant to r 13.1 of the Uniform Civil Procedure Rules 2005 for possession of property, namely, property situated at 44 Arthur Street, Wellington in the State of New South Wales.

2. The Motion also seeks leave to issue a writ of possession for that same property and seeks summary judgment in relation to a claim for mesne profits of $12,350 calculated by reference to the weekly rental value which is contained in exhibit A in the proceedings of $150 per week calculated from 17 June 2016 until today.

3. The Court has before it an Affidavit of Natalie Anne Holmes dated 7 December 2017 and affirmed on that date. The history of the matter is that the plaintiff and the defendant were at one stage married. A divorce order was made on or about 2 February 2015. That divorce order did not make any order upsetting the title which is in the name of Natalie Anne Holmes.

4. Correspondence occurred at least from the point at which twelve months had passed from the divorce and on 17 May 2016 the plaintiff insisted upon vacant possession on and from 17 June 2016. As earlier stated, it is that date from which the calculation of mesne profits and the calculation of the order for judgment has been made.

5. Thereafter, there was significant correspondence which made it clear that on the one hand, Ms Holmes sought possession of the property and on the other hand, the defendant was either delaying or not providing that vacant possession.

6. As earlier stated, I have an Affidavit of service (which was an order of the Court earlier made) which provides that personal service of the proceedings and the Motion have been effected. I accept that evidence, and it is certainly not subject to cross examination.

7. I also have had delivered to the Court under the cover of a handwritten note, a letter from the defendant in effect stating that, seemingly on Affidavit, he would not be in attendance and he cannot be reached from his mobile phone but he asks for the matter to be heard “ex parte” and will accept whatever judgment of the Court is made.

8. From all of the foregoing, it is clear that the plaintiff is the registered proprietor of the property in question. She and the defendant divorced in 2015 and he has lived on the premises alone since 2011. There has not been a property settlement associated with the divorce.

9. The plaintiff’s Affidavit makes clear that the plaintiff has not entered into any agreement with the defendant as to occupation of the property. It also makes clear that she is not aware of any other person in occupation. She has made a number of requests of the defendant to leave. She has paid all of the outgoings for the property and the defendant paid her $50 a fortnight for a period of eighteen months and this has been his only contribution to the property.

10. On the basis of the evidence before me, there is no issue associated with a resulting trust or the judgments of the High Court in Bloch v Bloch (1981) 180 CLR 390; [1981] HCA 56, or Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59, and rather the principles to be applied are those outlined by McLelland J, as he then was, in Hammon v O’Brien (1995) BPR 97,331 in which his Honour said:

“In accordance with modern practice it is appropriate to award mesne profits (which are in the nature of damages for trespass) for the period from which possession was demanded (14 November 1989) until the plaintiff recovers possession of the property (see Lynch v Port Jackson Trading Corp Pty Ltd [1950] VLR 153 ; Fridd v Smith [1948] SASR 161).”

11. With great respect to his Honour, I respectfully agree with his Honour’s comments and adopt the same practice.

12. As a consequence, the Court makes the orders in the Short Minutes of Order handed up today, initialled and signed by me and dated with today’s date.

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Decision last updated: 05 March 2018