Prineas v Prineas

[2015] NSWSC 1845

Supreme Court

New South Wales

Medium Neutral Citation:

Prineas v Prineas [2015] NSWSC 1845

Hearing dates:

3 December 2015

Decision date:

03 December 2015

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

1. An order for sole possession of the property known as 10 Fowler Street, South Coogee, being the whole of the land in folio identifier 27/111912 (“the Property”).

 

2. Leave to issue a writ of possession forthwith.

 

3. Order that the defendant be restrained from entering the property.

 4. Costs of the plaintiff to be paid by the defendant.

Catchwords:

PRACTICE AND PROCEDURE – default judgment – defendant failed to file defence within time prescribed and further time permitted by Court – failure to appear - default judgment against the defendant ordered

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), rr 14.3, 16.2, 16.3

Category:

Principal judgment

Parties:

Affrodite Venna Prineas by her tutor Stephen Nicholas Prineas (Plaintiff)
James Nicholas Prineas (Defendant)

Representation:

Counsel:
AM Hawkins (Plaintiff)

    Solicitors:
Robert Tinsey (Plaintiff)

File Number(s):

2015/262005

Judgment (EX TEMPORE – REVISED)

Introduction

1. Affrodite Prineus (the plaintiff) applies for default judgment for sole possession of a residential property at South Coogee of which she is the sole registered proprietor (the Property). One of her sons, Stephen Prineas, acts as her tutor in these proceedings.

2. Ms Hawkins, who appears on behalf of the plaintiff, relies on the affidavit of Stephen Prineas sworn 3 September 2015 and the affidavit of service of Martin Folkes sworn 11 September 2015.

The facts

3. The plaintiff, who is 92 years old, has resided in a house on the Property since 1976. James Prineus (the defendant) is one of the plaintiff’s sons. He is 64 years old and has been living at the property since 2010. On about 7 July 2015 the defendant was served by post with a Notice to Quit the Property. The Notice to Quit expired on 4 August 2015. The defendant has failed to vacate the property. These proceedings were commenced by statement of claim filed on 7 September 2015.

4. The plaintiff seeks an order for full possession of the property; leave to issue a writ forthwith; an order that the defendant be restrained from entering the property; and an order for costs.

5. The matter first came before the Court for directions on 15 October 2015. The defendant failed to appear. The matter was stood over to 29 October 2015 at which time the defendant appeared. On that occasion, the defendant was directed by the Registrar to file and serve any defence on or before 17 November 2015. The matter was stood over to the Registrar’s List on 19 November 2015. In breach of the Registrar’s direction, the defendant failed to file a defence by the due date.

6. On 19 November 2015, the defendant once again failed to appear. He sent an email to the Registrar saying that he was ill. On that occasion the plaintiff was directed to advise the defendant of the new adjourned date being 3 December 2015. I am informed by Ms Hawkins that her instructing solicitor notified the defendant of the new date. The defendant has neither filed a defence, nor appeared today when the matter was called three times outside the Registrar’s Court.

7. The plaintiff has established an entitlement to default judgment (by the affidavit of Stephen Prineas referred to above) and that the relevant documents have been served on the defendant.

8. The defendant is in default within the meaning of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 16.2, as he has failed to file a defence either within 28 days after service of the statement of claim, or within such further time as the Court allows: UCPR 14.3. UCPR 16.4 provides for default judgment on a claim for possession of land. The plaintiff has fulfilled the requirements of that rule for default judgment by the evidence in the affidavits I have referred to above.

Conclusion

9. Accordingly, I am satisfied that it is appropriate to order default judgment against the defendant for the relief claimed in the Statement of Claim filed on 7 September 2015.

Orders

10. I make orders in terms of paragraphs 1, 2, 3 and 4 of the relief claimed in the statement of claim by default:

1. An order for sole possession of the property known as 10 Fowler Street, South Coogee, being the whole of the land in folio identifier 27/111912 (“the Property”).

2. Leave to issue a writ of possession forthwith.

3. Order that the defendant be restrained from entering the property.

4. Costs of the plaintiff to be paid by the defendant.

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Decision last updated: 07 December 2015