Kennedy v Kennedy

[2022] NSWSC 1637

Supreme Court

New South Wales

Medium Neutral Citation:

Kennedy v Kennedy [2022] NSWSC 1637

Hearing dates:

30 November 2022

Date of orders:

30 November 2022

Decision date:

30 November 2022

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Judgment for the plaintiff for possession of the land comprised in folio identifiers 2/609662, 163/755564, 196/755564,197/755564 & Auto Consol 10360-156, being the land situated at and known as 1641 South Arm Road, South Arm in the State of New South Wales.

2. Leave to Plaintiff to issue writ to enforce the judgment of the Court.

3. Defendant to pay costs of the proceedings.

Catchwords:

LAND LAW – possession of land – claim by registered proprietor against a trespasser – summary judgment given

Legislation Cited:

Nil

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

William Charles Kennedy (Plaintiff)
Maureen Kennedy (Defendant)

Representation:

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

Solicitors:
John Kell Hicksons Lawyers (Plaintiff)
Unrepresented (Defendant)

File Number(s):

2022/24147

Publication restriction:

Nil

Judgment

1. The plaintiff seeks judgment for the possession of land at 1641 South Arm Road, South Arm. The plaintiff is the sole registered proprietor of the land. The defendant, who is a former spouse of the plaintiff, has occupied the land since about October 2019 and despite notices to vacate issued in March and May 2020, has not left the land.

2. The plaintiff, in the statement of claim filed on 27 January 2022 sought, first, a declaration that the defendant had no present right to enter, occupy or remain on the land; secondly, an order that the defendant be permanently restrained from entering or remaining on the property; thirdly, an order that the defendant give possession of the land; fourthly; leave to issue a writ of possession.

3. No defence was filed to the statement of claim.

4. The plaintiff sought default judgment but this was refused by the Registrar because the plaintiff had sought the declaration and the injunction. The plaintiff thereafter, with my leave, filed a notice of motion seeking summary judgment for possession of the land.

5. I am satisfied that the defendant has been served with the originating process and has subsequently been served with the notice of motion. There is no response in any form from the defendant. Although it was believed at one stage that the defendant had vacated the land, recent information suggests that she is still in occupation of the land, or part of it.

6. The plaintiff is the registered proprietor of the land. The defendant is a trespasser who entered and remained on the land without the permission of the plaintiff.

7. I am satisfied that the plaintiff is entitled to summary judgment. Accordingly, I make these orders:

1. Judgment for the plaintiff for possession of the land comprised in folio identifiers 2/609662, 163/755564, 196/755564,197/755564 & Auto Consol 10360-156, being the land situated at and known as 1641 South Arm Road, South Arm in the State of New South Wales.

2. Leave to Plaintiff to issue writ to enforce the judgment of the Court.

3. Defendant to pay costs of the proceedings.

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Decision last updated: 30 November 2022