Gabo Island Investments Pty Ltd v Roe

[2023] NSWSC 1172

Supreme Court

New South Wales

Medium Neutral Citation:

Gabo Island Investments Pty Ltd v Roe [2023] NSWSC 1172

Hearing dates:

15 September 2023

Date of orders:

15 September 2023

Decision date:

15 September 2023

Jurisdiction:

Common Law

Before:

Walton J

Decision:

(1) Judgment for the plaintiff for possession of the land comprised in folio identifiers 297-305/16051 being the land situated at and known as 131 Five Islands Road, Cringila NSW 2502.

(2) The plaintiff has leave to issue a writ of possession in relation to the premises.

(3) Judgment for the plaintiff against the Defendant for $32,519.61.

(4) The defendant pay the plaintiff's costs.

Catchwords:

CIVIL – no appearance for the defendant - judgment for the plaintiff for possession of land – leave granted to issue a writ of possession in relation to the premises

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), s 45.14

Cases Cited:

GE Personal Finance Pty Ltd v Smith [2006] NSWSC 889

Category:

Principal judgment

Parties:

Gabo Island Investments Pty Ltd (Plaintiff)
David John Roe (Defendant)

Representation:

Counsel:
J Momitsas (Plaintiff)

Solicitors:
JCM Legal Pty Ltd (Plaintiff)

File Number(s):

2023/208999

JUDGMENT

1. Gabo Island Investments Pty Ltd ("the plaintiff") sought orders in an Amended Notice of Motion for default judgment on a claim for possession of land and liquidated claim filed on 7 September 2023. The primary relief claimed is set out in a statement filed on 29 June 2023. The plaintiff is the registered proprietor and landlord of the premises.

2. The particular relief sought by the plaintiff in the matter is as follows in the Court's Duty List today:

1. Judgment in favour of the plaintiff for possession of the land comprised in Folio Identifier 297-305 of 16051 being the land situated at or known as 131 Five Islands Road, Cringila, which I will describe as "The Premises."

2. An order for the issue of a writ for the possession of a premises, or alternatively if the Court deems it more appropriate, that the plaintiff had leave to issue a writ of possession.

3. Judgment in favour of the plaintiff against the defendant for $2,519.61.

4. The defendant to pay the plaintiff's costs.

3. Two preliminary observations should be made. Firstly, to date, the defendant has not filed a response to the plaintiff's Statement of Claim for filing a defence, nor has the defendant filed an appearance in the proceedings.

4. It does appear to me, having regard to the submissions advanced by the plaintiff and notwithstanding the decision of Johnston J in GE Personal Finance Pty Ltd v Smith [2006] NSWSC 889, that the matter properly falls within the possession list of the Common Law Division pursuant to s 45.14 of the Uniform Civil Procedure Rules 2005 (NSW). I note the range of authorities referred to by the plaintiff in that respect.

5. In all the circumstances, it appears to me that on the evidence before the Court in the form of an affidavit of Malcolm Ayoub, the Court should give default judgment on the claim for possession of land and the liquidated claim. Accordingly, the Court will make the orders proposed by the plaintiff, save that the Court presently considers that it should not, itself, at this juncture, make the order for a writ for default possession of the premises, but rather grant the plaintiff leave to issue a writ of possession.

6. Therefore, I make Order 1 and I make Order 2 in the amended form as I have just identified in terms of the writ. I make Order 3 and I make Order 4, and thereby grant the plaintiff costs of the Motion as against the defendant.

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