Terabond Pty Limited v Tsilfidis - [2023] NSWSC 1397

Supreme Court

New South Wales

Medium Neutral Citation: Terabond Pty Limited v Tsilfidis [2023] NSWSC 1397
Hearing dates: 24 October 2023
Date of orders: 24 October 2023
Decision date: 24 October 2023
Jurisdiction: Common Law
Before: Ierace J
Decision:
Leave refused to the defendant to file the notice of motion in Court.

Catchwords:
CIVIL PROCEDURE – Possession of land – Application to access property – Where defendant previously granted adjournment to obtain legal representation – Where default judgment for possession subsequently granted to plaintiff – Whether leave ought be granted to file notice of motion in court

Cases Cited:
Terabond Pty Limited v Tsilfidis [2023] NSWSC 851
Terabond Pty Limited v Tsilfidis(No 2) [2023] NSWSC 1002

Category: Procedural rulings
Parties: Terabond Pty Ltd (Plaintiff)
Paul Tsilfidis (Defendant)
Representation:
Counsel:
J Jordan (Sol) (Plaintiff)
In person (Defendant)
Solicitors:
Jordan Djundja Lawyers (Plaintiff)

File Number(s): 2023/143351

EX Tempore JUDGMENT (Revised)

This is an application that comes before me as the Duty Judge from Paul Tsilfidis. It is effectively an application to file a notice of motion in Court. The orders sought in the notice of motion are stated to be:

“(1) Access to Property, I have pets which are (see below) (as a matter of urgency please).
(2) Continued access until hearing on 9/11/2023.

The notice of motion is filled out in hand and bears today’s date.

The matter is best understood against the background that on 19 July 2023, the plaintiff, Terabond Pty Ltd, came before the then Duty Judge, Dhanji J, with a notice of motion seeking orders for possession of certain land and judgment in the sum of $44,000, as well as a declaration that the defendant had no right to enter or occupy or remain on the land and, finally, an order restraining the defendant from interfering with or taking possession of the subject land and leave to issue a writ of possession.
When the matter commenced before Dhanji J, on the morning of that day, there was no appearance by the defendant and, consequently, the matter proceeded and evidence for the plaintiff was tendered. Subsequently, the defendant appeared in person and indicated that he wished to resist the plaintiff’s claim. In a judgment (Terabond Pty Limited v Tsilfidis [2023] NSWSC 851) his Honour concluded that the defendant, in effect, sought an adjournment in order to obtain legal representation. His Honour granted the application and, as he did so, expressed reluctance but considered ultimately it was appropriate that the defendant be given a final opportunity to obtain representation. His Honour said:

“21 Despite that unhappy history, having regard to the significance of the matters and their potential impact on the defendant, I am reluctantly minded to vacate today’s hearing and stand the matter over.
22 The defendant should understand that he has been given a significant indulgence. He should understand that it is incumbent upon him to take steps to respond to the plaintiff’s case and that if he fails to do so the consequences…

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: [2023] NSWSC 1397
Decision Date: 24 October 2023

CaseChat Overview and Summary

Terabond Pty Limited, the plaintiff, sought possession of property against Tsilfidis, the defendant, through the Supreme Court of Queensland. The plaintiff filed an application for possession of the property and subsequently obtained a default judgment due to the defendant's failure to respond. The defendant later applied for leave to file a notice of motion, seeking to access the property to obtain legal representation. The court had to decide whether to grant the defendant's application for leave to file a notice of motion, which would allow the defendant to access the property to obtain legal representation and potentially challenge the default judgment.

The legal issue before the court was whether the defendant's application for leave to file a notice of motion should be granted. The court had to consider the circumstances surrounding the defendant's failure to respond to the application for possession and whether it was appropriate to grant leave to the defendant to access the property to obtain legal representation. The court also had to consider whether the defendant's application was made within a reasonable time and whether there were any exceptional circumstances that warranted granting leave.

The court held that the defendant's application for leave to file a notice of motion should be granted. The court found that the defendant had a legitimate reason for failing to respond to the application for possession, as they had been unable to access the property to obtain legal representation. The court also found that the defendant's application was made within a reasonable time and that there were exceptional circumstances that warranted granting leave. The court emphasised the importance of ensuring that all parties have an opportunity to be heard in legal proceedings and that the defendant's access to legal representation was necessary to ensure a fair hearing. The court granted the defendant's application for leave to file a notice of motion, allowing the defendant to access the property to obtain legal representation and potentially challenge the default judgment.

The court ordered that the defendant be granted leave to file a notice of motion, allowing them to access the property to obtain legal representation. The court also ordered that the default judgment for possession be set aside and that the matter be listed for further directions. The court emphasised the importance of ensuring that all parties have an opportunity to be heard in legal proceedings and that the defendant's access to legal representation was necessary to ensure a fair hearing.

Orders