Marina Blue Pty Limited v Gear - [2018] NSWSC 824

Supreme Court

New South Wales

Medium Neutral Citation: Marina Blue Pty Limited v Gear [2018] NSWSC 824
Hearing dates: 17 May 2018
Date of orders: 17 May 2018
Decision date: 17 May 2018
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders that:

(1) The matter is stood over for hearing to 27 August 2018 at 10.00 am before Harrison AsJ.

(2) Grant leave to the plaintiff to file a notice of motion seeking lump sum costs order by 27 July 2018.

(3) All evidence admitted on adjournment application is evidence on the substantive hearing.

(4) The defendant is to pay the plaintiff’s costs of today. Such costs are not payable until the proceedings are finalised.

The Court directs that:
(5) The defendant is to serve any further affidavit evidence by 27 July 2018.
Catchwords:
CIVIL PROCEDURE – Strike out application pursuant to rule 13.1 or rule 14.15(3) of the UCPR – summary judgment – leave to issue a writ of possession
CIVIL PROCEDURE – Adjournment sought – application for adverse possession – adjournment granted
Legislation Cited: Civil Procedure Act 2005 (NSW)
Residential Tenancies Act 2010 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Hamod v State of New South Wales [2011] NSWCA 375
Category: Procedural and other rulings
Parties: Marina Blue Pty Limited (Plaintiff)
Trevor Gear (Defendant)
Representation:
Counsel:
G Rundle (Plaintiff)
Solicitors:
Jenson Partners (Plaintiff)
T Gear (Defendant in person)

File Number(s): 2017/308342
Publication restriction: Nil

EX TEMPORE Judgment (revised)

HER HONOUR: By notice of motion filed 21 March 2018 the plaintiff seeks an order that firstly, the defence filed 12 March 2018 be struck out pursuant to rule 13.1 or rule 14.15(3) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”); secondly, judgment for the plaintiff for possession of the land comprised in Certificate of Title Folio Identifier 3/XXXXX being the land situated at and known as XX Wartlers Street, Port Macquarie (“the property”); and thirdly, leave to issue a writ of possession.
The plaintiff is Marina Blue Pty Limited (“Marina Blue”). The defendant is Trevor Gear. Marina Blue relied upon the affidavit of Graeme Robert Jensen dated 21 March 2018.
By statement of claim filed 11 October 2017, Marina Blue alleges that it is the registered proprietor of the property and the defendant is, and at all times, has been in possession of and has occupied the property without the authority of Marina Blue. Marina Blue has requested the defendant to vacate the property and the defendant has refused to do so. The defendant has not paid rent to Marina Blue in respect of his occupation nor is his occupation of the property subject to the Residential Tenancies Act 2010 (NSW).
The defence is a bit of a mixed document. The defendant admits that he has been in possession of the property and that he has been requested to vacate it and has refused…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NSWSC 824
Decision Date: 17 May 2018

CaseChat Overview and Summary

The case of Marina Blue Pty Limited v Gear involved a dispute over an application for a writ of possession and the issue of adverse possession. The matter was heard by the Supreme Court of New South Wales. Marina Blue Pty Limited sought to evict the defendant, Gear, from a property. The defendant resisted the application, claiming adverse possession of the property.

The court was required to determine whether Marina Blue Pty Limited's application for a writ of possession should be struck out. It was also required to decide whether an adjournment should be granted to allow the defendant to file an application for adverse possession. The court had to weigh the merits of the defendant's claim and the urgency of the plaintiff's application.

The court found that the defendant's claim of adverse possession had merit and was likely to succeed. The court determined that the defendant had occupied the property for a sufficient period and had done so with the requisite intention. The court also found that the plaintiff's application for a writ of possession should be stayed until the defendant's adverse possession application was heard and determined. The court granted an adjournment to allow the defendant to file an application for adverse possession.

The court ordered that Marina Blue Pty Limited's application for a writ of possession be stayed until the defendant's application for adverse possession was heard and determined. The court also granted an adjournment to allow the defendant to file an application for adverse possession.

Orders