Kennedy v Kennedy

[2018] NSWSC 1087

Supreme Court

New South Wales

Medium Neutral Citation:

Kennedy v Kennedy [2018] NSWSC 1087

Hearing dates:

13 July 2018

Date of orders:

13 July 2018

Decision date:

13 July 2018

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Defence to Amended Statement of Claim filed 23 June 2018 struck out.

 

2. Defences filed 13 April 2018 and 6 June 2018 struck out.

 3. Leave to the plaintiff to move for default judgment on Amended Statement of Claim and to issue a writ of possession.

Catchwords:

LAND LAW – possession of land – executors seeking to get in property of estate – defendant in occupation of land – no defence establishing any right to possession by the defendant – defences struck out

Category:

Procedural and other rulings

Parties:

Robert Ramon Kennedy (First Plaintiff)
Peter Ronald Kennedy (Second Plaintiff)
Catherine Anne Kennedy (First Defendant)

Representation:

Counsel:
L Hammond (Plaintiffs)
No appearance (Defendant)

  Solicitors:
Kennedy & Cooke Lawyers (Plaintiffs)
Self-represented (Defendant)

File Number(s):

2017/327451

Publication restriction:

Nil

Judgment

1. The plaintiffs are the executors of the estate of Colin Raymon Kennedy who died on 16 April 2016. Probate was granted to the plaintiffs on 19 August 2016. In October 2016 a property at 117 Ravenswood Street, Bega was transmitted to the executors. I am informed that the beneficiaries under the will of the deceased are his surviving five children of whom the defendant is one. I am also informed that the only asset of any substance in the estate is the property in Ravenswood Street and that it is estimated to be worth around $200,000.

2. The defendant is in occupation of the property and has been since about November 2015.

3. The proceedings were commenced on 30 October 2017 by the filing of a statement of claim. The defendant acting for herself filed a defence on 13 April 2018. On 14 May 2018 an amended statement of claim was filed which simply adjusted the relief claimed from seeking a declaration about the defendant's right to occupy the property to seeking an order that the plaintiff have possession of the property and asking for leave to issue a writ of possession forthwith.

4. The defendant filed what was described as an amended defence on 6 June 2018 and then a document described as a defence to the amended statement of claim on 23 June 2018. Each of the defences appears to be very similar, if not identical, to the others. The defences do not identify what defence the defendant has to the claim. Rather they contain a long dissertation of allegations made against the plaintiffs, their solicitors and various other persons including one or more police officers at the local police station. There are allegations of criminality and wrongdoing against these persons which in pleading terms should be regarded as scandalous.

5. The defences do not make clear any legal basis on which the defendant occupies the property. There is a faint suggestion that the deceased, who apparently resided in a nursing home, gave permission for the defendant and her child to stay there for a limited time before they moved away from the area. The defences also acknowledge that the defendant informed the plaintiffs’ solicitors that she would be vacating the property by 21 August 2017. That did not occur.

6. The proceedings were last before the registrar on 12 June 2018 when orders were made for the defendant to file a copy of the defence which was filed on 23 June with such defence to contain all the annexures. The Registrar also adjourned the proceedings to my list for early judicial directions today. On 12 June 2018 the defendant was present by telephone by leave of the Registrar, as I understand she had been on the previous occasion of 1 May. When the proceedings were called on for hearing before me today attempts were made to contact the defendant on the telephone number recorded by the Registrar but there was no answer in response to that call.

7. In my opinion the defences filed by the defendant do not disclose any defence to the claim by the executors. Where there is no lease in place, except if a claim was made in the nature of some form of constructive trust, it is doubtful if there could be any defence to the right of the executors to get in all of the estate property including by obtaining possession of the land.

8. Ordinarily where litigants appear self-represented I am prepared to give them a second opportunity to file a defence setting out a proper defence to the claim that is made. Given the history of this matter, when it has been before the Registrar on two occasions and three defences have been filed in similar or identical terms, I do not consider that there is any purpose to be served by giving the defendant a further opportunity. I am also conscious of the running up of costs on what is a very small estate.

9. For those reasons the defence to the amended statement of claim filed 23 June 2018 is struck out. It does not appear that the earlier forms of the defence have been adjudicated upon and for the avoidance of any doubt I similarly order that the defences filed 13 April 2018 and 6 June 2018 also be struck out. The plaintiff is at liberty to move for a default judgment on the amended statement of claim and for leave to issue a writ of possession to enforce the judgment of the Court.

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Decision last updated: 16 July 2018