Stevic v King

[2024] NSWSC 272

Supreme Court

New South Wales

Medium Neutral Citation:

Stevic v King [2024] NSWSC 272

Hearing dates:

19 March 2024

Date of orders:

19 March 2024

Decision date:

19 March 2024

Jurisdiction:

Common Law

Before:

Weinstein J

Decision:

(1) Judgment for the plaintiff for possession of the land comprised in Certificate of Title Auto-Consol 3482-24 being the land situate at and known as 2A Warialda Street, Merrylands, NSW (also known as 2A Warialda Street, Merrylands West, NSW).

(2) Leave be granted to the plaintiff to issue a writ for possession in respect of the land.

(3) I stand over the balance of Statement of Claim, being the claim for occupation fees and costs, to the Registrar on 14 May 2024

Catchwords:

LAND LAW – possession – default judgment

Category:

Principal judgment

Parties:

Gordana Stevic (Plaintiff)
Gordon King (Defendant)

Representation:

Counsel:
J Darvall (Plaintiff)

Solicitors:
Paull Mettick & Associates (Plaintiff)

File Number(s):

2023/236395

Publication restriction:

Nil

JUDGMENT – EX TEMPORE – REVISED

1. Before me is a notice of motion for default judgment on a claim for the possession of land which was filed on 2 November 2023. The motion names Gordana Stevic as the plaintiff and her brother Gordon King as the defendant. The plaintiff seeks the following relief:-

1. Judgment for the plaintiff for possession of the land comprised in Certificate of Title Auto-Consol 3482-24 being the land situate at and known as 2A Warialda Street, Merrylands, NSW (also known as 2A Warialda Street, Merrylands West, NSW) (the land).

2. Leave be granted to the plaintiff to issue a writ of possession in respect to the land.

2. The land consists of a house.

3. A Statement of Claim was filed on 25 July 2023 seeking the orders set out above. Additional orders were also sought, for an occupation fee at the rate of $650 per week and costs, but they are not pressed today. No Defence to the Statement of Claim has ever been filed. In December 2023, a draft Defence was provided to her Honour Justice Lonergan, but on 21 December 2023 her Honour declined to permit the filing of that draft Defence, as her Honour determined that the document disclosed no substantive defence to the proceedings.

4. The motion was listed before Lonergan J on 14 December 2023, 21 December 2023, 12 February 2024, 20 February 2024 and 28 February 2024. On each occasion the matter was adjourned to allow the defendant an opportunity to seek legal assistance in an effort to see if there was a way to resolve the matter without recourse to the court’s intervention by way of judgment without the defendant’s consent. To that end, Lonergan J referred the defendant to the NSW Bar Association’s Pro Bono Assistance Scheme. In due course, the defendant was represented by a solicitor and a barrister, but on 28 February 2024 they were given leave to withdraw. A Notice of Ceasing to Act was filed on 29 February 2024. The defendant appeared in person today, unrepresented.

5. As indicated by her Honour on each occasion that the matter was before her, the court would inevitably have to deal with the notice of motion before it on its merits.

6. Before me are several affidavits relied upon by the plaintiff. They are as follows:-

1. An affidavit of Gordana Stevic sworn on 1 November 2023;

2. An affidavit of service of Joseph Khoury sworn on 25 October 2023;

3. An affidavit of Paul Mattick sworn on 11 December 2023;

4. An affidavit of Gordana Stevic sworn on 29 December 2023;

5. An affidavit of Gordana Stevic sworn on 12 January 2024; and

6. An affidavit of Paul Mattick sworn on 22 February 2024.

7. The defendant relies on no evidence.

8. The plaintiff’s affidavits reveal the following, all of which is uncontroversial.

9. On 26 January 2022, more than two years ago, Bozidar Stevic died (the deceased). He was the registered proprietor of the land, which in accordance with the terms of his Will executed on 9 November 2013, is to be sold. After the payment of debts and funeral and testamentary expenses, his Estate is to be distributed equally to his two children, who are the plaintiff and the defendant in these proceedings.

10. There was an issue ventilated at several directions hearings about the proceeds of the deceased’s superannuation fund, and whether or not those proceeds form part of the deceased’s Estate. They do not. It is apparent that in the exercise of a discretion, the trustee of the deceased’s superannuation fund (Australian Super) distributed an amount of approximately $370,000 to the plaintiff in her personal capacity as an interdependent child of the deceased, rather than in her capacity as executor. Any dispute about the trustee’s decision is irrelevant to the instant proceedings. For all intents and purposes, the land is the only asset of the Estate.

11. On or about 11 April 2022, the plaintiff and the defendant met with a real estate agent to discuss the sale of the land. It appears that thereafter the relationship between the plaintiff and the defendant broke down.

12. On or about 14 July 2022, the plaintiff discovered that the land was occupied, and soon thereafter she established that it was occupied by the defendant. This fact is not disputed.

13. Although both the plaintiff and the defendant were named as executors in the Will of the deceased, the defendant refused to sign an application for a Grant of Probate. A notice to apply for a Grant of Probate by the plaintiff alone was served on the defendant on 14 February 2023. She made an application for a Grant of Probate on 20 March 2023. On 17 April 2023, the plaintiff obtained a Grant of Probate from this court.

14. On 27 May 2023, a Notice to Quit was served on the defendant. No other person has been in occupation of the land. This has been confirmed in proceedings before Lonergan J on the several occasions the matter has been listed for directions in December 2023 and February 2024. On each of those occasions, the defendant appeared in person.

15. On or about 5 August 2023, the Statement of Claim seeking possession of the land was served on the plaintiff. For a short period in September 2023, the defendant apparently instructed solicitors, but no Notice of Appearance was ever filed. Neither was a Defence filed, and so on 2 November 2023, the notice of motion for default judgment was filed. There is no issue as to its service. As noted above, the notice of motion has been before the court on five occasions prior to today, on two occasions when the defendant had the pro bono assistance of a solicitor and a barrister.

16. As of 12 January 2024, the Estate had the following debts:-

1. $4316.81 in council rates;

2. $1811.04 in water rates;

3. $15,236 in funeral expenses;

4. $2500 in expenses for the deceased’s wake;

5. $836 for a funeral notice; and

6. $503.90 for gas and electricity rates.

17. The Estate therefore has debts in excess of $25,000. To pay these debts, the land must be sold.

18. I am satisfied that the plaintiff has established her title to the land. She is the registered proprietor of the land in her capacity as executor of the Estate of the late Bozidar Stevic. The defendant has no legal right to occupy the land, although he has been living there paying no rent or licence fee since at least September 2022. He was served with a Notice to Quit, the Statement of Claim and the notice of motion many months ago. No Defence has been filed, and he is in default.

19. In my opinion, the plaintiff is entitled to the order for possession she seeks so that she can proceed to sell the land and distribute the Estate. Ultimately, after the payment of outstanding rates, funeral and testamentary expenses and legal costs, the deceased’s Estate will be divided in two, and each of the plaintiff and the defendant will share in it as beneficiaries in equal shares. That cannot happen until such time as the land is sold.

20. I therefore make the following orders:-

1. Judgment for the plaintiff for possession of the land comprised in Certificate of Title Auto-Consol 3482-24 being the land situate at and known as 2A Warialda Street, Merrylands, NSW (also known as 2A Warialda Street, Merrylands West, NSW).

2. Leave be granted to the plaintiff to issue a writ for possession in respect of the land.

3. I stand over the balance of Statement of Claim, being the claim for occupation fees and costs, to the Registrar on 14 May 2024.

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Decision last updated: 19 March 2024