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)

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.
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.
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.
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.
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.
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…

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 851
Decision Date: 19 July 2023

CaseChat Overview and Summary

In Terabond Pty Limited v Tsilfidis, the plaintiff, Terabond Pty Limited, sought a default judgment against the defendant, Tsilfidis, for possession of a property. The matter was heard in the Federal Circuit Court of Australia, where the plaintiff filed an application for default judgment due to the defendant's failure to respond to the proceeding. The defendant appeared late, seeking to vacate the hearing on the basis that they had not been properly served with the originating process.

The court was tasked with determining whether the defendant's application to vacate the hearing should be granted. Specifically, the court had to consider whether the defendant's late appearance constituted sufficient grounds for vacating the hearing and whether the defendant's claims of improper service were substantiated. The court also needed to evaluate the impact of the defendant's late appearance on the plaintiff's right to a final and conclusive determination of their claim.

The court found that the defendant's application to vacate the hearing was not justified. The court held that the defendant's late appearance, without a satisfactory explanation, did not warrant vacating the hearing. Additionally, the court dismissed the defendant's claims of improper service, finding that the defendant had not provided credible evidence to support their allegations. The court emphasised the importance of adhering to procedural rules and the need for parties to respond to proceedings in a timely manner. As a result, the court refused to vacate the hearing and proceeded to grant the plaintiff's application for default judgment.

Orders