McLachlan v Alameddine

[2022] NSWSC 1292

Supreme Court

New South Wales

Medium Neutral Citation:

McLachlan v Alameddine [2022] NSWSC 1292

Hearing dates:

26 September 2022

Date of orders:

26 September 2022

Decision date:

26 September 2022

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Second amended defence filed 23 September 2022 is struck out.

2. Judgment for plaintiff for possession of the land comprised in Folio Identifier 1/104807 being the land situated at and known as 22 Clara Street, Erskineville, NSW 2043.

3. Writ of possession not to be executed before 21 November 2022.

4. Any evidence in relation to a claim for damages or mesne profits is to be filed and served by 24 October 2022

5. Listed for Directions before the Registrar at 9am on 7 November 2022.

6. Defendant to pay plaintiff’s costs of the proceedings.

Catchwords:

LAND LAW – possession of land – claim by executors against an occupier – defendant asserts that deceased promised he would leave the property to her – no defence pleaded to claim for possession – defence struck out – judgment for possession

Legislation Cited:

Nil

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

John William McLachlan (First Plaintiff)
Donal Robert Mackenzie (Second Plaintiff)
Seham Alameddine (Defendant)

Representation:

Counsel:
L Hespe (Plaintiff)
In person (Defendant)

Solicitors:
Teece Hodgson & Ward (Plaintiff)
Self-represented (Defendant)

File Number(s):

2022/164114

Publication restriction:

Nil

Judgment

1. The plaintiffs are the registered proprietors of land at 22 Clara Street, Erskineville. They are registered proprietors in their capacity as executors of the estate of the late Kenneth John McKenzie who died on 3 November 2020. Probate of Mr McKenzie's will was granted on 26 March 2021.

2. The defendant has apparently lived at the property for a considerable number of years. She claims to have done so by agreement with the deceased, and without any arrangement to pay any money to do so whether by rent, occupation fee or otherwise.

3. Demands were made for her to vacate the property so that the executors could administer the estate. When she did not do so these proceedings commenced on 6 June 2022.

4. The defendant who has at all times acted for herself filed a defence on 1 September 2022. That defence was not in any proper form in accordance with the Uniform Civil Procedure Rules 2005 (NSW).

5. On 9 August 2022 the registrar gave the defendant leave to file and serve an amended defence by 6 September 2022. The matter came before me for judicial directions on 9 September 2022 but no further defence had been filed. On that occasion I gave the defendant a further fourteen days in which to file an amended defence that disclosed a proper defence to the claim for possession. An amended defence was filed on 23 September 2022.

6. The substance of the defence is that the defendant believed that the deceased would leave her the house in his will. The defence sets out various statements alleged to have been made by the deceased indicating that she should treat the house as hers and that she should not worry, that she would be able to remain in the house.

7. The defence also details the defendant's relationship with the deceased and sets out details of moneys she claims to have expended from time to time on the house. The first group of expenses were utility bills. The second group consisted of repairs and replacements.

8. The defence does not disclose any defence to a claim for possession of the property. It might contain the germs of a claim of an agreement between the defendant and the deceased whereby the property was to be left to her, although what consideration was to be provided for that is not set out in the defence which has been filed. That is not a defence to a claim for possession by the registered proprietors. The defence must be struck out and an order for possession made.

9. The plaintiffs also claim damages or mesne profits from the defendant. There is no evidence filed in relation to that. I will make directions if that claim is to be pursued.

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Decision last updated: 26 September 2022