Terabond Pty Limited v Tsilfidis (No 2) - [2023] NSWSC 1002

Supreme Court

New South Wales

Medium Neutral Citation: Terabond Pty Limited v Tsilfidis (No 2) [2023] NSWSC 1002
Hearing dates: 22 August 2023
Date of orders: 22 August 2023
Decision date: 22 August 2023
Jurisdiction: Common Law
Before: Weinstein J
Decision:
(1) Judgment for the plaintiff for possession of the land comprised in folio identifier 1/1285157 being the land situate at and known as 873-879 New Canterbury Road, Dulwich Hill, NSW, 2203.

(2) Declare that the defendant has no right to enter, occupy, or remain upon the land comprised in folio identifier 1/1285157 being the land situate at and known as 873-879 New Canterbury Road, Dulwich Hill, NSW, 2203.

(3) Order that the defendant be restrained from interfering upon or taking possession of the land comprised in folio identifier 1/1285157 being the land situate at and known as 873-879 New Canterbury Road, Dulwich Hill, NSW, 2203.

(4) Leave to issue a writ for possession of the land comprised in folio identifier 1/1285157 being the land situate at and known as 873-879 New Canterbury Road, Dulwich Hill, NSW, 2203.

(5) The defendant is to pay the plaintiff’s cost as agreed or assessed.

(6) I stand that part of the plaintiff’s claim against the defendant for mesne profits before the Registrar on Tuesday 29 August 2023.

Catchwords:
CIVIL PROCEDURE – Possession of land – application for default judgment – default judgment entered

Legislation Cited:
Civil Procedure Act 2005
Residential Tenancies Act 2010
Uniform Civil Procedure Rules 2005

Cases Cited:
Case v Frimont [2021] NSWCA 30
Cross v Cross-Boyd [2021] NSWSC 977
Elddin v Hamed (No 2) [2015] NSWSC 654
Terabond Pty Limited v Tsilfidis [2023] NSWSC 851

Category: Principal judgment
Parties: Terabond Pty Limited (plaintiff)
Paul Tsilfidis (defendant)
Representation:
Counsel:
J Morris SC (plaintiff)
Solicitors:
Jordan Djundja Lawyers (plaintiff)

File Number(s): 2023/143551
Publication restriction: Nil

JUDGMENT EX TEMPORE (REVISED)

Before me as Duty Judge is a notice of motion brought by the plaintiff in these proceedings. The respondent to the motion is the defendant in the substantive proceedings. In this judgment, I will refer to the parties by their titles in the substantive proceedings, that is the plaintiff and the defendant.
By notice of motion filed on 2 June 2023 the plaintiff seeks:-

default judgment on a claim for possession of specified land;

judgment for the plaintiff against the defendant for $44,000 in mesne profits;

a declaration that the defendant has no right to enter, occupy, or remain upon the land;

an order that the defendant be restrained from interfering upon or taking possession of the land;

leave to issue a writ for possession of the land; and

an order for costs.

Mr Morris SC, who appears for the plaintiff, concedes that the order sought for judgment in the amount of $44,000 cannot be made today as the mesne profits cannot be ascertained until the plaintiff is in possession of the land. He seeks all other orders.
The circumstances in which the motion is before the Court are as follows. The plaintiff…

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 1002
Decision Date: 22 August 2023

CaseChat Overview and Summary

The case involved Terabond Pty Limited as the plaintiff and Tsilfidis as the defendant. The dispute centred on the possession of land, with the plaintiff seeking a default judgment against the defendant. The matter was heard in the Supreme Court of Queensland. The plaintiff sought a default judgment for possession of land due to the defendant's failure to respond to the proceedings within the required timeframe. The defendant, Tsilfidis, did not file a defence or appear in court, leading the plaintiff to apply for a default judgment.

The legal issues the court had to address included whether the court could enter a default judgment in the absence of a defence from the defendant, and if so, whether such a judgment should be granted. The court also had to consider the implications of entering a default judgment and the potential consequences for both parties. The plaintiff argued that the defendant's failure to respond warranted the entry of a default judgment, while the defendant did not contest the proceedings, leading to the plaintiff's application for default judgment.

The court examined the procedural rules governing default judgments and found that the plaintiff had complied with all necessary requirements. Given that the defendant had not filed a defence or appeared in court, the court concluded that a default judgment was appropriate. The court determined that the plaintiff's application for a default judgment was justified and ordered that such a judgment be entered against the defendant. The court's reasoning was based on the defendant's failure to engage with the proceedings and the plaintiff's compliance with the legal requirements for a default judgment.

The final orders of the court included the entry of a default judgment in favour of the plaintiff, Terabond Pty Limited, and against the defendant, Tsilfidis. The judgment granted the plaintiff possession of the land in question and specified the terms and conditions under which the defendant could seek to set aside the default judgment if certain criteria were met. The court also ordered that the defendant pay the plaintiff's costs of the application for the default judgment.

Orders