Jowett v Wade [2022] NSWSC 1636

Supreme Court New South Wales

Medium Neutral Citation: Jowett v Wade [2022] NSWSC 1636 Hearing dates: 30 November 2022 Date of orders: 30 November 2022 Decision date: 30 November 2022 Jurisdiction: Common Law Before: Davies J Decision: 1. Judgment for the Plaintiff for possession of the land known as 68 Woy Woy Road, Woy Woy in the State of New South Wales and comprised in Folio Identifier 33/4984. 2. Defendants to pay the plaintiff's costs of the proceedings. 3. Liberty to apply on 2 days' notice. Catchwords: LAND LAW – possession of land – where plaintiff was executor, and probate granted – defendants occupiers but not beneficiaries – plaintiff entitled to possession Legislation Cited: Nil Cases Cited: Nil Texts Cited: Nil Category: Procedural rulings Parties: Julieanne Jowett (Plaintiff) Rhiannon Wade (First Defendant) Dylan Cervo (Second Defendant) Representation: Counsel: L Teoh (Plaintiff) In person (Defendants)

Solicitors: Tonkin Drysdale Partners (Plaintiff) Unrepresented (Defendants) File Number(s): 2022/246566 Publication restriction: Nil

Judgment 1. The plaintiff is the executor of the will of the late Ronald James Reeves who died on 25 January 2022. Probate of his will dated 6 September 2011 was granted to the plaintiff on 28 April 2022. Under cl 4 of the will the property at 68 Woy Woy Road, South Woy Woy, is given in equal shares to the plaintiff and to Melissa K Bernsdoff. 2. For a period of time the defendants in the present proceedings were residing in the property. Notices to vacate had been issued at various times in May and June of this year but at the date of the filing of the statement of claim on 19 August 2022 it was believed that they were still residing in the premises. 3. The statement of claim seeks possession of the land. A defence was filed on 18 October 2022 by the Second Defendant, although it was said to be filed for both of the defendants. The section of the defence headed "Pleadings and Particulars" rather seems to suggest that there was another will, which made provision other than the will which had been granted to probate. There were also claims of harassment on the part of the plaintiff in relation to the defendants' occupation of the property. 4. The first and second defendants have appeared this morning. The first defendant has told me that they do not any longer reside at the property and that the other beneficiary, Ms Bernsdoff, who is the mother of the First Defendant, is residing at the property. The defence also said the Ms Bernsdoff resided at the property. There is evidence of service of a notice to occupier, which has not been responded to by Ms Bernsdoff. 5. Mr Teoh, of counsel for the plaintiff, is unclear whether he seeks to disturb the occupation of Ms Bernsdoff, but in the light of the fact that the notice to occupier has been served and not responded to, there is no reason why judgment should now not be given in favour of the plaintiff. The plaintiff can then determine if she intends to disturb Ms Bernsdoff's occupation of the property, whether for a need to sell the property or otherwise to administer the estate. 6. The defence filed does not disclose a defence to the claim, and the defendants now appear not to resist the making of an order for possession. 7. The plaintiff seeks costs. The defendants filed a defence where they relevantly stated only that they no longer resided at the address on a permanent basis. It was not until this morning that the defendants made clear that they no longer resided in the property on any basis, and that they were not defending the claim. In those circumstances, the defendants should pay the plaintiff's costs. 8. In the circumstances I make these orders: 1. Judgment for the Plaintiff for possession of the land known as 68 Woy Woy Road, Woy Woy in the State of New South Wales and comprised in Folio Identifier 33/4984. 2. Defendants to pay the plaintiff's costs of the proceedings. 3. Liberty to apply on 2 days' notice.