Terabond Pty Limited v Tsilfidis (No 2)

Before me as Duty Judge is a notice of motion brought by the plaintiff in these proceedings. The respondent to the motion is the defendant in the substantive proceedings. In this judgment, I will refer to the parties by their titles in the substantive proceedings, that is the plaintiff and the defendant.

By notice of motion filed on 2 June 2023 the plaintiff seeks:-

Mr Morris SC, who appears for the plaintiff, concedes that the order sought for judgment in the amount of $44,000 cannot be made today as the mesne profits cannot be ascertained until the plaintiff is in possession of the land. He seeks all other orders.

The circumstances in which the motion is before the Court are as follows. The plaintiff filed a Statement of Claim on 4 May 2023. The defendant did not file an Appearance and no steps were taken by him to file a Defence. Consequently, the notice of motion was filed, effectively seeking the relief sought in the Statement of Claim. The matter came before his Honour Justice Dhanji on 19 July 2023: see Terabond Pty Limited v Tsilfidis [2023] NSWSC 851. Initially there was no appearance by the defendant. The matter proceeded, and evidence was tendered. After some time, the defendant did appear and (in effect) sought an adjournment so that he could obtain legal representation. His Honour reluctantly granted the adjournment, and he advised the plaintiff to deal expeditiously with the matter before the Court or suffer the consequences. The matter was relisted before the Registrar.

The defendant attended a directions hearing in person on 26 July 2023 before Senior Deputy Registrar Hedge, who made orders that the defendant file and serve evidence on the default judgment motion by 10 August 2023. On 28 July 2023 the defendant filed a handwritten Notice of Appearance, but a copy was not served on the plaintiff. The defendant has filed no evidence. He has not filed a Defence. He was called outside the courtroom today on two occasions (at about 10.05 am and at about 10.40 am) but he did not appear. He is aware of the proceedings today, as he was informed of today’s date on 26 July 2023 by Senior Deputy Registrar Hedge. There has also been copious correspondence from the plaintiff’s solicitors to the defendant reminding him of the hearing of the notice of motion.

The background to this matter is set out in the evidence filed by the plaintiff and which is contained in exhibits A and B. There is a great deal of material before the Court which consists of 19 affidavits which were read and are in three court book volumes. The evidence discloses that on 6 December 2019, a contract for the sale and purchase of land at Dulwich Hill was executed by the plaintiff as purchaser and the defendant as vendor for the price of $1,050,000. The subject land contains buildings used as residential premises. On 12 June 2020, settlement was completed, and on 20 June 2020, the plaintiff was registered on title as the owner of the land. The plaintiff purchased the property with the intention of redeveloping the land, and in June 2020, it was anticipated that the existing buildings would be demolished.

Amongst the many affidavits is one of Gregory Gav sworn on 28 June 2023. Mr Gav is the sole director, secretary, and shareholder of the plaintiff company. He deposes to a conversation with the defendant on 12 June 2020 in which he agreed to the defendant living in the property free of charge without payment of rent, bills or expenses for about three months, but in any event until such time as he asked the defendant to leave the property. Thus there was an oral agreement between the plaintiff and the defendant permitting the defendant to occupy the premises for a period of three months for no payment at all. The defendant remained in occupation after settlement.

In early 2021, the plaintiff began to take steps to develop the property and on 19 March 2021 served a notice to vacate on the defendant. The defendant remained in occupation. On 14 April 2021, a further notice to vacate was served on the defendant. The plaintiff changed the locks on 30 April 2021. Unbeknownst to the plaintiff, the defendant re-entered the premises without the plaintiff’s permission and reoccupied the premises after the locks were changed.

Another notice to vacate was served on the defendant on 28 April 2023. He still remained in occupation. On 4 May 2023 the plaintiff filed a Statement of Claim seeking possession of the property and other orders. The notice of motion before the court was filed on 2 June 2023. Lest there be any question about service upon the defendant of the Statement of Claim, the notice of motion and the affidavits upon which the plaintiff relies today, which are contained in volumes 1 and 2 of exhibit A and exhibit B, the affidavits clearly demonstrate that the defendant has been served with each and every document that is before the court today. Furthermore, the defendant was present before Dhanji J on the last occasion and is aware of the proceedings and the evidence which has been prepared for the purposes of today’s notice of motion. He attended the call over before Senior Deputy Registrar Hedge on 26 July 2023 and is aware that if he wishes to defend the proceedings that he must appear and put on evidence.

As a matter of caution, Mr Morris pointed out to me that the oral agreement by which the defendant occupied the land was not an agreement with respect to a residential tenancy. Section 13 of the Residential Tenancies Act 2010 is as follows:

The agreement pursuant to which the defendant occupied the land was not one in which a person granted to another person a right of occupation for value. There was never any payment whatsoever, and in my view it is not arguable that the agreement falls within the Residential Tenancies Act: see Case v Frimont [2021] NSWCA 30; Cross v Cross-Boyd [2021] NSWSC 977 and Elddin v Hamed (No 2) [2015] NSWSC 654. This is of importance as it permits the plaintiff to commence and continue these proceedings in this Court, rather than the Civil and Administrative Tribunal.

To succeed on this application the plaintiff must satisfy several matters that are contained in the Uniform Civil Procedure Rules 2005 (the Rules). Rule 16.4 provides:-

In accordance with rule 16.4(3), I observe that the affidavits of Mr Gav and Mr Karakikes, the latter of which was sworn on 25 July 2023, indicate that no person other than the defendant occupied the whole or any part of the land at the time of the originating process and at the time the claim for possession arose. The history of the matter is set out in the affidavit of Mr Gav: r 16.4(3)(d). The requirements of r 16.4(3)(e) with respect to costs are set out at length in the affidavit of Mr Kadar sworn on 21 August 2023. Service of the originating process and the motion are set out in the affidavit of Mr Jordan sworn on 4 July 2023 (and others): r 16.4(3)(f). In my opinion the evidence establishes that all the prerequisites of r 16.4 have been satisfied.

Rule 6.8A provides:-

Before me, as MFI 2, is Form 93 which is the prescribed form pursuant to rule 6.8A. That document is titled “Possession of Land Coversheet” and is in 17 languages. It says the following:

Mr Morris conceded that the defendant has never been served with a Form 93. However, the substance of the information that is contained in Form 93 was conveyed to the defendant by Dhanji J on 19 July 2023. It can be inferred from the defendant’s filing of a Notice of Appearance and his appearance before Senior Deputy Registrar Hedge that he is aware of the consequences of his failure to meet the motion by the service of evidence or at least by appearing before the Court. To extent that it is necessary, I dispense with the requirement for the service of Form 93 by the plaintiff upon the defendant pursuant to s 14 of the Civil Procedure Act 2005 (CPA).

I turn now to r 36.8. That rule, which applies to the possession of land, reads as follows:

So far as r 36.8 is concerned, the affidavits in exhibit B satisfy me of the matters in r 36.8(1)(a) which is of relevance in these circumstances.

As to the circumstances in which the issue of the writ requires leave, r 39.1 relevantly provides:

The plaintiff seeks a writ for the possession of land. Rule 39.1(2) and (3) provide:

In these proceedings the plaintiff has satisfied both subrules (3)(a) and (b) by the evidence of Mr Gav, who has deposed that the plaintiff is entitled to proceed to execution on the judgment, and that the defendant against whom the execution is sought is liable to execution on the judgment. I therefore grant the plaintiff leave.

The plaintiff seeks costs in a specified sum. They are set out in the affidavit of Mr Kadar sworn on 21 August 2023. There is no doubt that the power of the Court in s 98 of the Civil Procedure Act 2005 permits me to order a specified sum instead of ordering that costs be agreed or assessed. An assessment of costs is a significant legal right. In the circumstances of this case, and in particular because the defendant is absent, I am disinclined to make an order for costs in a specified sum.

Taking all matters into account, and noting the great effort to which the plaintiff has gone in preparing this matter, I make the following orders:-