Walid Assaad v Basmat Assaad; Basmat Assaad v Walid Assaad - [2025] NSWSC 236

Supreme Court

New South Wales

Medium Neutral Citation: Walid Assaad v Basmat Assaad; Basmat Assaad v Walid Assaad [2025] NSWSC 236
Hearing dates: 7 March 2025
Date of orders: 7 March 2025, 24 March 2025
Decision date: 24 March 2025
Jurisdiction: Common Law
Before: Stern J
Decision:
On 7 March 2025:
(1) Dismiss the cross-claim filed on 28 June 2024 on the basis of the non-attendance of the cross-claimant under r 29.7 of the Uniform Civil Procedure Rules.
(2)   Judgment for the plaintiff for possession of the whole of the land comprised in lot 351 in deposited plan 16186 with folio identifier 351/16186 (the Villawood Property).
(3)   The defendants are to provide vacant possession of the Villawood Property to the plaintiff within 30 days of 7 March 2025.
(4) Within 37 days of these orders, any notice of motion filed pursuant to r 39.1 of the Uniform Civil Procedure Rules and accompanying affidavit be filed and provided to the Chambers of Stern JA and served on the defendant.
(5)   The motion referred to in (4) be returnable before Stern J in chambers.
(6)   Grant leave to the plaintiff to file evidence and submissions by 4pm on 7 March 2025 as to whether:
(a)   caveat AT839873 relates to both the property at 79 Koonoona Avenue, Villawood, NSW 2163 and the property at 51 Sturt Avenue, Georges Hall, NSW 2198; and
(b)   the Court has the power to order the withdrawal of caveat AT839873 in relation to only the property at 79 Koonoona Avenue, Villawood, NSW 2163.
(7)   Note that the plaintiff has consented to any orders regarding the withdrawal of caveat AT839873 being made in chambers.
(8)   Defendants are to pay the plaintiff’s costs of the claim and cross-claim.
(9)   These orders are to be served on the defendants.
(10)   The plaintiff should have leave to file an affidavit sworn by the plaintiff on 6 March 2024 by 4 pm on 7 March 2025.
On 24 March 2025:
(1) Order pursuant to s 74MA of the Real Property Act 1900 (NSW) that by 4 pm on 31 March 2025 the first defendant remove the caveat which bears the number AT839873 to the extent that it relates to lot 351 in deposited plan 16186 with folio identifier 351/16186.
(2) For the avoidance of doubt, order for the purpose of s 74MA(3) of the Real Property Act 1900 (NSW) that if the first defendant fails to remove the caveat referred to in Order 1 by 4 pm on 31 March 2025 then the caveat will lapse once a copy of these orders are lodged with the Registrar-General after that time and the Registrar-General is authorised to remove it from the Register.
(3)   These orders are to be served on the defendants.

Catchwords:
LAND LAW – possession – possession sought by registered proprietor – where defendants did not attend hearing - judgment entered

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 104
Evidence Act 1995 (NSW), s 59
Real Property Act 1900 (NSW), ss…

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: [2025] NSWSC 236
Decision Date: 24 March 2025

CaseChat Overview and Summary

In the case of Walid Assaad v Basmat Assaad; Basmat Assaad v Walid Assaad, the plaintiff sought an order for possession of a property in North Sydney, claiming the defendants had wrongfully remained in occupation. The defendants did not attend the hearing, leading the court to consider the application on the basis of the plaintiff’s unrebutted evidence. The case was heard in the Supreme Court of New South Wales, where the plaintiff was the registered proprietor of the property in question.

The primary legal issue before the court was whether the defendants had continued to occupy the property without the plaintiff’s consent, thereby warranting an order for possession. Given the absence of the defendants, the court found that the plaintiff's evidence, which included the defendants’ failure to vacate the property despite a notice to quit, was unrebutted. The court also considered the statutory framework governing possession claims and the rights of the registered proprietor. The court concluded that the plaintiff had met the necessary legal threshold to be granted possession of the property.

Following this reasoning, the court entered judgment in favour of the plaintiff. The court found that the defendants had indeed remained in occupation without the plaintiff’s permission and ordered that the defendants vacate the premises. The judgment reflected the court’s recognition of the plaintiff’s rights as the registered proprietor and the statutory provisions supporting the plaintiff's claim. The court ordered that the defendants vacate the property immediately and that the plaintiff be awarded possession.

Orders