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[2023] NSWSC 733

Lam v Greene

1. Judgment for plaintiff for possession of the land described as Lot 169 in DP227284 and known as 16 Elbe Street, Seven Hills, NSW. 2. Leave to plaintiff to issue writ of possession such writ not to be executed before 11 August 2023. 3. Listed for directions before Davies J at 9:30am on 8 September 2023. 4. Liberty to apply on two days’ notice.

Catchwords

LAND LAW – possession of land – where plaintiff is the executor of deceased’s will – land and residence is the only asset in estate – where estate to be divided equally between plaintiff and defendant – no defence filed – plaintiff entitled to default judgment

Cases cited

  • Nil

Legislation cited

  • Nil

Judgment

  1. [1]

    The statement of claim in this matter was filed on 13 March 2023, seeking possession of land at Elbe Street, Seven Hills. The property formerly belonged to Marcia Sylvia Greene, who died on 4 July 2022. Probate of her will dated 2 February 2017 was granted to the plaintiff on 2 November 2022.

  2. [2]

    The defendant is the plaintiff's brother. Under the terms of the deceased's will the whole of the residue of the estate was given to the plaintiff and the defendant in equal shares. At the date of the death the assets of the estate consisted of the house, and money in the bank totalling about $14,000. By reason of the obtaining of probate and other matters the estate now consists solely of the real estate, which needs to be sold so that the residue can be divided in accordance with the will.

  3. [3]

    The defendant has been in occupation of the premises for some time. The defendant has refused to vacate the property and has refused to cooperate in any way. No defence has been filed to the statement of claim. The proceedings have been before the court on three previous occasions, being 18 May, 19 June and 26 June. On no occasion has the defendant appeared.

  4. [4]

    The plaintiff, in addition to seeking possession of the land, also claims mesne profits, as a result of the defendant's occupation of the property since the date of death. The plaintiff now seeks default judgment. It is not appropriate that default judgment should be given for mesne profits, but the plaintiff is entitled to default judgment for possession of the land in the absence of any defence or any appearance by the defendant. The plaintiff seeks that if such judgment is given the proceedings should be adjourned so that consideration can be given to whether the claim for mesne profits will be pursued.

  5. [5]

    I am satisfied from the plaintiff’s affidavit that the defendant is the only occupier of the premises.

  6. [6]

    Accordingly, I make the following orders:

Unofficial copy. Source: NSW Caselaw. Refer to the official version for authoritative text.