Terabond Pty Limited v Tsilfidis

[2023] NSWSC 851

Supreme Court

New South Wales

Medium Neutral Citation:

Terabond Pty Limited v Tsilfidis [2023] NSWSC 851

Hearing dates:

19 July 2023

Date of orders:

19 July 2023

Decision date:

19 July 2023

Jurisdiction:

Common Law

Before:

Dhanji J

Decision:

(1)    The hearing of this matter today is vacated.

(2)    I stand the matter over before the Registrar on 26 July 2023.

(3)    The defendant is to pay the plaintiff’s costs on the motion.

(4)    I order that a transcript of today’s proceedings be taken out.

Catchwords:

CIVIL PROCEDURE – Possession of land – application for default judgment – late appearance of the defendant – hearing vacated

Category:

Procedural rulings

Parties:

Terabond Pty Ltd (ACN 082 609 390) (Plaintiff)
Paul Tsilfidis (Defendant)

Representation:

Counsel:
Mr JM Morris SC (Plaintiff)

Solicitors:
Jordan Djundja Lawyers (Plaintiff)
Self-represented (Defendant)

File Number(s):

2023/143351

Publication restriction:

Nil

EXTEMPORE JUDGMENT (REVISED)

1. HIS HONOUR: Listed for hearing before me today, as Duty Judge, is a notice of motion brought by the plaintiff in these proceedings. The respondent to the notice of motion is the defendant in the substantive proceedings. I will refer to the parties by their titles in the substantive proceedings, that is the plaintiff and the defendant.

2. The notice of motion seeks orders for possession of land, judgment in the sum of $44,000, a declaration, or at least what I take to be an application for a declaration, that the defendant has no right to enter or occupy or remain on the land, an order restraining the defendant from interfering with or taking possession of the subject land, and leave to issue a writ of possession.

3. The motion sought judgment by way of default judgment. The circumstances in which that came about is that the plaintiff’s statement of claim was filed on 4 May 2023. There was no appearance of the defendant, no steps taken by the defendant to file a defence, and consequently, the notice of motion was filed effectively seeking the relief sought in the statement of claim.

4. The matter commenced before me this morning at 10:14 am, at which point the defendant was called. There was no appearance of the defendant and consequently the matter proceeded and evidence for the plaintiff was tendered. The material tendered provided what appeared to me to be a solid foundation for the plaintiff’s claim.

5. In short, the background of the matter based on the evidence of the plaintiff is as follows. Up until about 12 June 2020, the defendant was the registered proprietor of the subject property. There was a sale of the property to the plaintiff company on around 12 June 2020 for the sum of $1,050,000. The land contained buildings used as residential premises. The plaintiff had purchased the property with the intention of redeveloping the site. At that stage, it was anticipated the existing buildings would be demolished.

6. An oral agreement was entered into between a director of the plaintiff company and the defendant by which the plaintiff agreed to allow the defendant to occupy the premises for a period of three months for no payment, after which time the defendant was obliged to vacate the premises on request. The defendant was not obliged to pay rent, licensee rates, electricity, or water.

7. The plaintiff, on organising its affairs such that it was in a position to take steps to develop the property, served a notice to vacate in March 2021.

8. According to the plaintiff, further notices to vacate were served on the defendant and, the locks were changed in April 2021. The plaintiff’s evidence is to the effect that the defendant re-entered the premises after the locks were changed without permission. Ultimately, in May of this year, the plaintiff filed its statement of claim seeking possession of the property and other orders.

9. On the material filed by the plaintiff there does appear to be, as I have said, a sound foundation for the relief sought, at least for possession of the property.

10. As a result of the defendant having taken no steps in the proceedings, the matter was set down before me for hearing today in the duty list. Included amongst the evidence provided by the plaintiff is evidence of attempts to serve the defendant. The effect of that evidence is that the defendant, at all times, refused to accept personal service. On various occasions, he asked the persons attempting to serve him to leave him alone, but he also indicated on various occasions they should deal with his solicitor.

11. The evidence before me is to the effect that the plaintiff’s solicitors did, when directed, attempt to speak to the person identified as the defendant’s solicitor. In this regard, the defendant had supplied those acting as agents for the plaintiff with a card for Sergio Nicolau, a solicitor at Newtown Solicitors.

12. There is evidence of communication between the plaintiff’s solicitors and Mr Nicolau. Mr Nicolau has at no stage entered an appearance in this Court and has indicated on multiple occasions to the plaintiff’s solicitors that he does not act for the defendant.

13. After the matter was called and the evidence that I have referred to was led, I raised a number of queries with Mr Morris SC for the plaintiff and the matter was stood down.

14. Very shortly after standing the matter down, I was advised that the defendant, had attended. On resuming the matter the defendant appeared in person and, in short, indicated that he wished to resist the plaintiff’s claim.

15. He made various claims from the bar table, without evidence. He told me that he had difficulties as a result of being in hospital up until Saturday. He said that he had spent considerable time with Mr Nicolau, that he had understood that Mr Nicolau was representing him, but that it was only on Monday afternoon that he was informed by Mr Nicolau that Mr Nicolau was not representing him. He said that subsequent to that he had made attempts to contact various solicitors but had not been successful. It seems the primary difficulty was that there was only a matter of a day prior to the matter being listed for hearing.

16. The defendant, in effect, sought an adjournment in order to obtain representation. He said that there are issues to be tried. In particular he suggests that he was tricked into the sale, that he had never intended to sell and raised, again all from the bar table, the suggestion that he had not received the entirety of the proceeds of the sale to which he was entitled.

17. It is impossible for me, at this stage, to make any assessment as to the veracity of these claims or as to the prospect of the defendant successfully defending the matter. Nor would I infer from what is before me that Mr Nicolau has acted other than appropriately.

18. I have some sympathy for the position of the plaintiff. On the evidence before me, through the plaintiff’s goodwill, the defendant was allowed to stay at the premises for a period in the order of nine months beyond the sale. On the plaintiff’s case, that goodwill has been repaid by a refusal on the part of the defendant to vacate the premises when requested to do so.

19. Further, having gone to significant lengths to advise the defendant of the need to vacate the property, the plaintiff has been taken to the trouble of filing proceedings in this Court. Having filed proceedings in this Court, the plaintiff has sought to repeatedly bring the proceedings to the attention of the defendant in a bid to have him understand the importance of engaging with the process.

20. The plaintiff’s extensive attempts in that regard have proved unsuccessful with there being no engagement, at least from the Court’s perspective or the plaintiff’s perspective, by the defendant right up until sometime after 10 o’clock this morning, when the defendant appeared unrepresented and made the various claims I have referred to from the bar table.

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 for him will be significant.

23. I make the following orders:

1. The hearing of this matter today is vacated.

2. I stand the matter over before the Registrar on 26 July 2023.

3. The defendant is to pay the plaintiff’s costs on the motion.

4. I order that a transcript of today’s proceedings be taken out.

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Decision last updated: 19 July 2023