Rafeletos v Liristis

[2016] NSWSC 1329

Supreme Court

New South Wales

Medium Neutral Citation:

Rafeletos v Liristis [2016] NSWSC 1329

Hearing dates:

19 September 2016

Date of orders:

19 September 2016

Decision date:

19 September 2016

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Judgment for the Plaintiffs for possession of the land known as 81 Violet Street, Revesby in the State of New South Wales.

 

2. The Plaintiff has leave to issue a writ of possession forthwith.

 3. The Defendant should pay the Plaintiffs' costs of the proceedings.

Catchwords:

REAL PROPERTY – possession of land – commercial lease of premises – default in payment of rent – tenant company deregistered – sole director and shareholder in occupation of premises – appeal against refusal of legal aid – adjournment sought - appeal not being pursued in good faith – defendant signs consent orders in Local Court acknowledging Plaintiffs’ right to possession – adjournment refused – order for possession made

Legislation Cited:

Legal Aid Commission Act 1979 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Category:

Principal judgment

Parties:

Constantinou Rafeletos (First Plaintiff)
Sophia Rafeletos (Second Plaintiff)
Tasos Liristis (Defendant)

Representation:

Counsel:
M Klooster (Plaintiffs)
In person (Defendant)

  Solicitors:
Thomas Booler & Co (Plaintiffs)
Self-represented (Defendant)

File Number(s):

2015/370376

Judgment

1. The Plaintiffs seek possession of land at 81 Violet Street, Revesby. On 13 September 2012 the Plaintiffs and a company called Prestige and Performance of Australia Pty Ltd entered into a commercial lease by which the premises were leased by the Plaintiffs to that company. The property was to be used by the tenant as a warehouse and for office use only. The term of the lease was two years from 1 October 2012 till 30 September 2014. The Defendant was the sole director and shareholder of the tenant company at and after the date of the lease.

2. There was a failure to pay rent by the tenant from 1 February 2013. On 15 June 2014 the tenant was deregistered as a company. From 15 June the present Defendant is alleged to have occupied the property. Subsequently, from March 2015 and on various occasions letters have been sent to the present Defendant requiring the removal of goods from the premises and for the premises to be vacated and returned to the Plaintiffs.

3. The evidence further discloses an arrangement made between the Plaintiffs on the one hand and the Defendant and Tony Liristis on the other hand that they would deliver vacant possession of the property on or before 31 May 2015. There have been periods of short extensions since that time up to 14 December 2015. At the time of filing the Statement of Claim on 17 December 2015 and subsequently the premises were still occupied by the goods of the tenant, including some livestock.

4. In the Defence filed 8 April 2016 the Defendant says that he has no contractual agreement with the Plaintiffs, that he is not in possession of the property and that the Plaintiffs have sued the wrong parties. He further asserts that the Statement of Claim is frivolous and vexatious, as there is no basis for the claim being brought in this Court.

5. The matter has been sent to me today for early judicial directions. The Defendant appears for himself. He has some difficulty with English but he has managed to communicate with me about the matter. He has handed me a letter, which I have marked as exhibit 1, where he seeks an adjournment of the proceedings pursuant to s 57 of the Legal Aid Commission Act 1979 (NSW) so that he can appeal against the refusal of legal aid for the matter. Under s 57 a stay is ordinarily to be granted except if the application to appeal is not done in good faith, is frivolous or vexatious, or is intended improperly to delay the proceedings and there are no special circumstances that prevent the Court refusing the adjournment.

6. The Defendant also handed to me a copy of Consent Orders that he signed in the Downing Centre Local Court on 12 September 2016 which provided for the removal of goods from the property. There is a notation on the consent orders to this effect: "The respondent" - that is, the present Defendant - "agrees that the applicants" - that is, the present Plaintiffs - "are immediately entitled to possession of the property." The Defendant said that these premises and the proceedings really concern his son. That may be so now but it was the Defendant’s company that rented the premises, and the Local Court orders suggest he has a continuing involvement.

7. In the light of what is said in the Defence and in the Consent Orders, it does not seem to me that the application to appeal against the refusal of legal aid is being pursued in good faith. There is simply no reason for legal aid to be provided to the Defendant in the circumstances of this Defence and his acknowledgment that the Plaintiffs are entitled, at least against him, to possession of the land.

8. The evidence does not disclose service of a Notice to Occupiers as the Uniform Civil Procedure Rules 2005 (NSW) require. However, an affidavit from the First Plaintiff sworn 19 September 2016 attests to the fact that the only persons who have at any time been in occupation of the land are the Defendant and the Defendant's son Tony Liristis. The evidence is that Tony Liristis is in prison.

9. Given the nature of the premises as a warehouse and storage, I consider it is appropriate to waive the requirement of the Rules for service of a Notice to Occupier. I am satisfied that there is no other person, apart from the Defendant and Tony Liristis, to whose attention such a Notice would come.

10. I am satisfied from the evidence that the leasing arrangement was, despite what the Defendant has said in his Defence, between the Plaintiffs and Prestige and Performance of Australia Pty Ltd and that it was the Defendant who was effectively in operation of the premises. Further, the Consent Orders made in the Local Court last week indicate an acceptance by the Defendant that he has been in occupation of the premises.

11. In those circumstances, there will be a judgment for the Plaintiffs for possession of the land known as 81 Violet Street, Revesby in the State of New South Wales. The Plaintiff has leave to issue a writ of possession forthwith. The Defendant should pay the Plaintiffs' costs of the proceedings.

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Decision last updated: 23 April 2018