Willis v Abraham

[2024] NSWSC 626

Supreme Court

New South Wales

Medium Neutral Citation:

Willis v Abraham [2024] NSWSC 626

Hearing dates:

22 May 2024

Date of orders:

22 May 2024

Decision date:

24 May 2024

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

(1) The defendant is granted leave to file and serve by Wednesday 31 May 2024 its Amended Defence substantially in the form served under cover of the letter from her solicitors to the plaintiff’s solicitors dated 21 May 2024.

(2) Judgment is entered for the plaintiff for possession of lot 2, deposited plan 737387 situated at and known as 7 Red Lion Street, Rozelle NSW 2039.

(3) In the event that the defendant does not cause to be delivered the keys to 7 Red Lion Street to the plaintiff or her agents by 4:00pm on 5 June 2024, the plaintiff have leave to issue a writ of possession in respect of 7 Red Lion Street pursuant to r 39.1 of the Uniform Civil Procedure Rules 2005 (NSW).

(4) The proceedings are listed for directions on 2 July 2024 at 9:30am before Davies J.

Catchwords:

PROPERTY – directions – no point of principle

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Real Property Act 1900 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Nil

Category:

Procedural rulings

Parties:

Mary Philomena Willis (Plaintiff)
Yael Abraham (Defendant)

Representation:

Counsel:
H Rogers (Plaintiff)
J Doyle (Defendant)

Solicitors:
Michael Anthony Do Rozario (Plaintiff)
JB Solicitors (Defendant)

File Number(s):

2023/00451976

Publication restriction:

Nil

JUDGMENT

1. On 22 May 2023 I made orders disposing of part of the proceedings for possession commenced by statement of claim filed on 13 December 2023. These are my reasons for making those orders.

2. The plaintiff, Ms Willis, owns and has for some time been registered proprietor of two side-by-side terrace houses, numbers 5 and 7 Red Lion Street, Rozelle which have not been occupied by her or formally tenanted for some years. In 2023 it was discovered by real estate agents appointed by Ms Willis that squatters had taken up residence in the two properties.

3. The defendant, Ms Abraham, made it known in correspondence initially to the agents, and later to Ms Willis’s solicitors, that she intended to claim adverse possession over the two terrace houses. She instructed solicitors to pursue that position.

4. A defence was filed on 19 January 2024 asserting adverse possession, and there has been much correspondence between the solicitors since that time. Pursuant to directions made by the Registrar, a proposed amended defence and cross-claim was provided to the solicitors for the plaintiff by the solicitors for the defendant for their instructions on 21 May 2024.

5. In an affidavit of the defendant’s solicitor Mr Lee filed on 21 May 2024, it was outlined that the defendant, having further considered the matter, will likely proceed via ss 45C and 45D of the Real Property Act 1900 (NSW) rather than through the Court, but only in respect of 5 Red Lion Street.

6. The affidavit also confirmed that no application would be made in respect of 7 Red Lion Street, currently occupied by the defendant’s daughter and that that person would be moving out on or around 8 June 2024 (although an earlier vacation date has since been negotiated).

7. Counsel appearing had reached agreement as to a timetable for vacating 7 Red Lion Street, Mr Doyle stating that no claim was pressed by the defendant to that property, and providing for the defendant to file and serve an amended defence.

8. Mr Rogers pressed for leave to issue a writ of possession in respect of 7 Red Lion Street in the event that the defendant does not deliver, or cause to be delivered, the keys to 7 Red Lion Street to the plaintiff or her agents by 5 June 2024.

9. Mr Doyle argued such an order was not necessary and not available in the circumstances given that r 39.1 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) requires a notice of motion with supporting evidence. He was also concerned that he did not act for the current occupant, the daughter of the defendant, and so was not in a position to speak for her.

10. Mr Rogers argued that r 39.1(2) simply provides that leave can be applied for in a notice of motion filed for the issue of a writ of execution, and that all the plaintiff wished to do, given the verified statement of claim and the concessions made by Mr Doyle that no adverse claim was pressed regarding 7 Red Lion Street, was to avoid further costs being incurred by the plaintiff having to return to court to seek leave from a possession list judge, should the defendant’s daughter fail to vacate by 5 June 2024.

11. In the circumstances, and consistently with s 56 of the Civil Procedure Act 2005 (NSW) and the overriding purpose of the UCPR, I determined that it was appropriate to also grant leave to the plaintiff to have the court issue a writ of possession in respect of 7 Red Lion Street, should there be a failure to vacate by the due date.

12. The purpose of standing the matter over to the date in July is to allow further discussion between the parties as to the way forward regarding 5 Red Lion Street and for the amended defence to among other things, correctly reflect the position regarding the absence of claim over 7 Red Lion Street.

Orders

13. On 22 May I made the following orders:

1. The defendant is granted leave to file and serve by Wednesday 31 May 2024 its Amended Defence substantially in the form served under cover of the letter from her solicitors to the plaintiff’s solicitors dated 21 May 2024.

2. Judgment is entered for the plaintiff for possession of lot 2, deposited plan 737387 situated at and known as 7 Red Lion Street, Rozelle NSW 2039.

3. In the event that the defendant does not cause to be delivered the keys to 7 Red Lion Street to the plaintiff or her agents by 4:00pm on 5 June 2024, the plaintiff have leave to issue a writ of possession in respect of 7 Red Lion Street pursuant to r 39.1 of the Uniform Civil Procedure Rules 2005 (NSW).

4. The proceedings are listed for directions on 2 July 2024 at 9:30am before Davies J.

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Decision last updated: 24 May 2024