Wilkes v Bykowski - [2016] NSWSC 1685

Supreme Court

New South Wales

Case Name:	Wilkes v Bykowski
Medium Neutral Citation:	[2016] NSWSC 1685
Hearing Date(s):	24 November 2016
Date of Orders:	1 December 2016
Decision Date:	1 December 2016
Jurisdiction:	Common Law
Before:	Davies J
Decision:	Judgment for the Plaintiff for the possession of the whole of the land in folio identifier 1/587234 situated at Lane Cove and known as 50A Bridge Street, Lane Cove in the State of New South Wales.
Catchwords:	REAL PROPERTY – possession of land – plaintiff is registered proprietor of land – defendant in occupation of land – past de facto relationship between the parties – plaintiff seeks summary judgment for possession – defendant subsequently commences proceedings in Family Court – conciliation conference in Family Court – whether parties agreed to stay Supreme Court proceedings – whether Family Court registrar made order for stay – whether registrar had power to make order - subsequent conduct of defendant inconsistent with agreement for stay – whether claim of de facto relationship was a defence to claim for possession – both parties desirous of sale of property – summary judgment for possession
Legislation Cited:	Family Law Act 1975 (Cth)
Cases Cited:	County Securities Pty Limited v Challenger Group Holdings Pty Limited & Anor [2008] NSWCA 193 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Harris v Caladine (1991) 172 CLR 84 Harvey v Phillips (1956) 95 CLR 235 Holder v Zeiher [2014] NSWSC 556 Paino v Hofbauer (1988) 13 NSWLR 193 Siebe Gorman & Co Ltd v Pneupac Ltd [1982] 1 WLR 185; [1982] 1 All ER 377
Category:	Principal judgment
Parties:	Leonie Margaret Wilkes (Plaintiff) Joseph Bykowski (Defendant)
Representation:	Counsel: P Afshar (Plaintiff) B Levet (Defendant) Solicitors: Blackman Legal (Plaintiff) Kinghan & Associates (Defendant)
File Number(s):	2015/194393

JUDGMENT

By Notice of Motion filed 20 October 2016 the Plaintiff seeks summary judgment for possession of land of which she is the registered proprietor. The Defendant, who is in possession of the land, is a person with whom, in the past, she has had a relationship. The extent of that relationship is in dispute. There are proceedings in the Family Court to determine whether there was a de facto relationship and, if so, if there should be an adjustment of financial interests under the Family Law Act 1975 (Cth).
The Defendant resists the Plaintiff being granted possession for two reasons. First, he submits that the Family Court should decide who of the Plaintiff and the Defendant is entitled to what share of the property. Secondly, he says that as a result of an order of a registrar of the Family Court the present proceedings were stayed with the result that the Plaintiff is not able to proceed on her Notice of Motion seeking summary judgment for possession.

Background

The Plaintiff filed an affidavit in support of her claim for final relief on 28 October 2015. For reasons that are not at all apparent the evidence contained in that affidavit detailed…

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.

Continue reading Wilkes v Bykowski

Details

AGLC: Wilkes v Bykowski [2016] NSWSC 1685
Case: [2016] NSWSC 1685
Decision Date: 1 December 2016

CaseChat Overview and Summary

In the case of Wilkes v Bykowski, the plaintiff, Wilkes, sought summary judgment for possession of a property against the defendant, Bykowski, who was in occupation of the property. Wilkes was the registered proprietor of the property, and Bykowski had been in a past de facto relationship with Wilkes. Wilkes sought summary judgment for possession after Bykowski failed to vacate the property following a termination of their relationship. Subsequently, Bykowski commenced proceedings in the Family Court, and a conciliation conference was held in the Family Court. The issue was whether the parties had agreed to stay the Supreme Court proceedings pending the outcome of the Family Court proceedings. It was also necessary to determine whether the Family Court registrar had the power to make an order for a stay and whether Bykowski's subsequent conduct was inconsistent with the agreement for a stay. Another issue was whether the claim of a de facto relationship was a defence to the claim for possession, particularly given that both parties were desirous of selling the property. The court found that there was no agreement for a stay of the Supreme Court proceedings, and the Family Court registrar did not have the power to make such an order. Additionally, Bykowski's conduct was inconsistent with any agreement for a stay. The court also found that the claim of a de facto relationship was not a defence to the claim for possession, particularly given that both parties were desirous of selling the property. Ultimately, the court granted summary judgment for possession in favour of Wilkes.

Orders