Komis v Debrah

[2021] NSWSC 1073

Supreme Court

New South Wales

Medium Neutral Citation:

Komis v Debrah [2021] NSWSC 1073

Hearing dates:

24 August 2021

Date of orders:

24 August 2021

Decision date:

24 August 2021

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

1. The proceedings are dismissed.

2. Each party is to bear its own costs of the proceedings.

Catchwords:

POSSESSION – misconceived proceedings – no right to occupy the premises at the time the proceedings were filed – proceedings dismissed

Category:

Procedural rulings

Parties:

Nola Komis (Plaintiff)
Junior Debrah (First Defendant)
Drummoyne McKendrick & Debrah Pty Ltd (Second Defendant)

Representation:

N Komis (Self-Represented)
J Debrah (Self-Represented for both defendants)

File Number(s):

2020/346795

Publication restriction:

Nil

REVISED EX TEMPORE

1. These proceedings were commenced on 7 December 2020 by way of a Statement of Claim, filed on behalf of the plaintiff by a solicitor, John Xenos, of AJX Legal. The proceedings sought relief in the form of a judgment for possession of premises at 43 Regent Street, Kogarah, as well as judgment for the plaintiff in a specified amount, and costs.

2. The basis upon which the relief was said to be due to the plaintiff was that she was lessee of the whole of 43 Regent Street, Kogarah, pursuant to a commercial lease between her and Margaret Anne Vasilis, made on 19 January 2018.

3. The Statement of Claim further pleads that on or about 9 March 2020, the plaintiff entered into a sub-lease with the defendants, which permitted the defendants to enter into possession of part of the premises, namely the ground floor. It is alleged that the defendants did enter into possession of that part of the premises, but that certain payments were not made pursuant to the Commercial Tenancy Sub-Lease Agreement.

4. I observe that the timing of this coincides with the first invasion into Australia, and New South Wales relevantly, of the COVID 19 pandemic, which I think I can take judicial notice, no doubt affected various aspects of usual occupation and the conduct of businesses all over Australia. In any event, what seems to have occurred is that the proceedings were filed, not understanding that Ms Komis probably never had a right to possession, given that she had vacated the premises on 30 November 2020.

5. The matter has come before me on one earlier occasion, 22 July 2021, at which time the first defendant, Mr Debrah who appears for himself and the second defendant, informed the Court that he had vacated the premises.

6. A Notice of Ceasing to Act was filed, and it seems, served, by the plaintiff’s former solicitor after that.

7. The plaintiff appears for herself today. She candidly informs me that she only found out on 18 December 2020 that the owner had in fact taken possession of the whole of the property and instructed the real estate agent to change the locks.

8. Accordingly, she herself has not been in the premises since that time, and informs me today that she is unable to attend the premises and check whether the defendant has vacated the premises because she is currently in an area that is locked down pursuant to Government Health Regulations and requirements associated with the current second phase of the COVID 19 pandemic, and its effect on certain parts of Sydney.

9. It seems to me that the whole proceedings have been misconceived. I understand Ms Komis takes the view she is owed money by the defendants, but that is a matter for another place and another Court. This list is dealing with applications for possession only, and it seems to me, based on what I have been told, that there was never a basis upon which the plaintiff could obtain an order for possession, given the proceedings were filed on 7 December 2020, a time after the plaintiff no longer, herself, it seems, had a right to possess any of the premises.

10. Accordingly, I dismiss the proceedings.

11. In respect of costs, I note that the plaintiff's proceedings have failed, and the defendant represented himself, and in those circumstances, I am of the view that the proper order is that each party is to bear its own costs of the proceedings.

12. Mr Debrah tells me that he is a metal fabricator, and to attend to six directions hearings, counting today and to prepare for those directions hearings, and to defend the matter, he has spent a full month of his professional time away from his business. He says that he has thus lost earnings as a result. I explained to Mr Debrah that I have power to award legal costs, where legal costs have been incurred. There is no evidence Mr Debrah consulted a lawyer in these proceedings. I do not accept that he has spent a whole month away from work, dealing solely with the very simple issues raised in these proceedings. In exceptional circumstances, there may be a basis upon which to make an award for a particular type of incurring of expenses, but in this case, I am not persuaded that this is one of those exceptional cases. The defendants have had the benefit of a verdict in their favour. My order remains, each party pay their own costs.

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Decision last updated: 25 August 2021