Terabond Pty Ltd v Tsilfidis (No 4) - [2024] NSWSC 751

Supreme Court

New South Wales

Medium Neutral Citation: Terabond Pty Ltd v Tsilfidis (No 4) [2024] NSWSC 751
Hearing dates: 19 June 2024
Date of orders: 19 June 2024
Decision date: 19 June 2024
Jurisdiction: Common Law
Before: Garling J
Decision:
(1)   Order the entry of judgment in favour of the plaintiff against the defendant in the sum of $100,682.45 consisting of:
(a)   Mesne profits: $95,494.73; and
(b) Interest on mesne profits pursuant to s 100 of the Civil Procedure Act 2005: $5,187.72.
(2)   Order the defendant to pay the plaintiff’s costs.

Catchwords:
POSSESSION OF LAND – Claim for mesne profits – Where the defendant remained in possession of the property following notices to vacate – No issue of principle – Mesne profits and interest awarded.

Legislation Cited:
Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005

Cases Cited:
Lamru Pty Limited v Kation Pty Limited (1998) 44 NSWLR 432
Terabond Pty Limited v Tsilfidis [2023] NSWSC 1397
Terabond Pty Ltd v Tsilfidis (No 2) [2023] NSWSC 1002

Texts Cited:
Not Applicable

Category: Principal judgment
Parties: Terabond Pty Ltd (P)
Paul Tsilfidis (D)
Representation:
Counsel:
J Kadar (P)
No Appearance (D)
Solicitors:
Djundja Lawyers (P)

File Number(s): 2023/143351
Publication restriction: Not Applicable

EX TEMPORE JUDGMENT

Relevant Facts

On 6 December 2019 the plaintiff, Terabond Pty Limited (“Terabond”), exchanged contracts with the defendant, Mr Paul Tsilfidis, for the purchase by the plaintiff from him of a property on New Canterbury Road at Dulwich Hill. On 12 June 2020 that purchase settled. Thereafter, Terabond has been the registered owner of the Dulwich Hill property.
On 12 June 2020, shortly prior to the settlement occurring, an oral agreement was entered into by which a director of Terabond, Mr Gav, agreed with the defendant that he could remain living in the upstairs part of the building for an unspecified period of time. That occupation was upon the condition that when Mr Gav, on behalf of Terabond, asked the defendant to leave, he was required to leave promptly and without dispute. In that conversation, it was noted that Mr Gav could not give the defendant any guarantee that he could remain in residence for more than three months. It was on that basis that the defendant remained in occupation. I note that that occupation did not require him to pay any moneys by way of rental, nor by way of electricity bills or other outgoings. It was, on all hands, a very generous arrangement for the defendant.
Notices to Vacate were served on the defendant on or about 19 March 2021, 14 April 2021, 30 April 2021 and 28 April 2023. The defendant did not vacate at any time in accordance with those notices. In my view, each and all of those notices clearly constituted requests by Terabond to the defendant to leave the premises and to cease his occupation, precisely as contemplated by the oral agreement entered into on 12 June 2020. The defendant did not leave.

The Proceedings

Proceedings were commenced in this…

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: [2024] NSWSC 751
Decision Date: 19 June 2024

CaseChat Overview and Summary

Terabond Pty Ltd, the plaintiff, sought to recover mesne profits and interest from Tsilfidis, the defendant, who had remained in possession of a property following notices to vacate. The dispute was heard in the Supreme Court of New South Wales. The plaintiff claimed that the defendant, having been served with valid notices to vacate, had failed to relinquish possession of the property, thereby entitling the plaintiff to claim mesne profits, being the reasonable rent of the property, and interest accruing from the date the defendant should have vacated.

The legal issues before the court involved the interpretation of the notices to vacate, the defendant's continued possession despite these notices, and the plaintiff's entitlement to claim mesne profits and interest. The court needed to determine whether the notices to vacate were valid and whether the defendant's continued occupation of the property constituted a wrongful retention of possession. The court also had to assess the amount of mesne profits and interest that should be awarded to the plaintiff.

The court found that the notices to vacate were valid and properly served, and that the defendant's continued possession was indeed wrongful. The judge held that the plaintiff was entitled to recover mesne profits, which were calculated based on the reasonable rent of the property, and interest accruing from the date the defendant should have vacated. The court awarded the plaintiff the sum of mesne profits and interest, which was determined by the evidence presented and the applicable legal principles.

Orders