Foundouradakis v Papantoniou [2023] NSWSC 662

Supreme Court New South Wales

Medium Neutral Citation: Foundouradakis v Papantoniou [2023] NSWSC 662 Hearing dates: 24 May 2023 Date of orders: 24 May 2023 Decision date: 24 May 2023 Jurisdiction: Common Law Before: Garling J Decision: See [29] Catchwords: REAL PROPERTY — possession — plaintiffs' claim for possession of land — where plaintiffs were the registered proprietors of the land — where default judgment had been entered in favour of the plaintiffs — where the Principal Registrar set aside the default judgment for no ascertainable reason — whether to discharge and set aside the Principal Registrar's decision to set aside the default judgment — Principal Registrar's decision to set aside the default judgment set aside Legislation Cited: Uniform Civil Procedure Rules 2005 Cases Cited: Not Applicable Texts Cited: Not Applicable Category: Procedural rulings Parties: Tass Foundouradakis (P) Bill Papantoniou (D1) Representation: Counsel: J Brown (P) No appearance (D1)

Solicitors: Owen Hodge Lawyers (P) File Number(s): 2022/379820 Publication restriction: Not Applicable

EX TEMPORE JUDGMENT 1. In these proceedings the plaintiffs seek possession of a property of which they are now the registered proprietors in Brighton-Le-Sands in Sydney ("the Property"). 2. The plaintiffs are Tass Foundouradakis and John Foundouradakis, respectively. They are the sons of Sevasti Foundouradakis, who died on 19 October 2021 ("the Deceased"). The Deceased was the registered proprietor of the Property at the time of her death. 3. By her Will dated 12 June 2019, the Deceased appointed the plaintiffs as her executors and trustees. Probate of the will was granted on 18 August 2022. 4. On 7 November 2022 the plaintiffs, by reason of the lodging of a transmission application, became the registered proprietors of the Property. On 16 December 2022, the plaintiffs filed a Statement of Claim in which they sought possession of the Property against three defendants. They also sought leave to issue a writ for possession of the property. 5. The first defendant, Bill Papantoniou, and the third defendant, Spiro Papantoniou, are grandchildren of the Deceased. The second defendant, Mary Foundouradakis, is the daughter of the Deceased and the mother of the first and third defendants. It is apparent from the evidence that the first defendant is at present the only occupier of the Property. For present purposes, the first defendant is the only relevant defendant. 6. According to the first plaintiff, the first defendant was served with the Statement of Claim in these proceedings on 17 December 2022. However, that seems to be an error. Nevertheless, the plaintiffs proceeded on the assumption that the first defendant was served with the Statement of Claim on that date. Accordingly, on 20 January 2023, the plaintiffs filed a Notice of Motion seeking default judgment. 7. On 23 January 2023, a Registrar raised three requisitions with respect to that Notice of Motion. First, the requisitions sought an affidavit stating, or alternatively perhaps proving, who the registered proprietors of the Property were. Secondly, the requisitions sought an affidavit of service on the occupiers of the Property. And, thirdly, the requisitions sought an affidavit of personal service on the first defendant. 8. The plaintiff chose to answer the second and third requisitions by instructing a process server to again attend the Property. On 13 February 2023, the process server attended the Property. The plaintiffs filed two affidavits of that process server which satisfy me that the first defendant was personally served with the Statement of Claim. I am also satisfied that on the basis of those affidavits he was the only adult occupant at the Property. A Notice to Occupier and other relevant documents were also served on him at that time. 9. On 23 February 2023, the plaintiffs answered the first requisition by way of an affidavit of their solicitor, Ms Holman, which annexed a title search recording that the plaintiffs were the registered proprietors of the Property. 10. On 7 March 2023, the first defendant filed a Notice of Appearance. 11. On 21 March 2023, a Registrar, acting pursuant to the Motion filed on 20 January 2023 – and apparently having been satisfied that the requisitions had been adequately answered – entered default judgment in favour of the plaintiffs. In that judgment, a Registrar ordered that the first defendant give possession of the Property to the two plaintiffs. A Registrar also entered a judgment against the first defendant for a sum of $2,405 comprised of various fees including filing fees, service fees and solicitors' fees. 12. On 24 March 2023, the plaintiffs filed a Notice of Motion seeking leave to issue a writ for possession of the land and for the issue of that writ. Prior to that Motion being determined on 27 March 2023, the Principal Registrar made a number of orders about which the plaintiffs were informed by a letter dated 27 March 2023. The letter stated that the orders were made on 27 March 2023, the date of the letter. The substantive order which was made was that the default judgment for possession of land entered on 21 March 2023 be set aside. I note from the file and the material before me that that order was made without any request by any party. Apparently, therefore, it was made by the Principal Registrar acting upon his or her own motion. No reasons were provided to explain why the order was made. It is simply impossible to know what the basis was for those orders. 13. The letter informing the parties of the orders noted that there had been a Notice of Appearance filed on 7 March 2023. It noted that there had been a default judgment for possession of land made on 21 March 2023, and noted that the Notice of Motion seeking the issue of a writ for possession of the land had been filed on 24 March 2023. 14. None of those particular steps are unusual in proceedings of this kind. None of those steps would provide any basis for setting aside the default judgment which had been entered on 21 March 2023. So far as I can see, there was no basis at all for the Principal Registrar to have acted in this way upon his or her own motion, and certainly no basis to have done so without informing the parties of that intention, seeking assistance by way of submissions, and providing an opportunity to be heard. 15. On 18 April 2023, the plaintiffs filed a Notice of Motion to review the Registrar's decision of 27 March 2023. The review sought was pursuant to the powers of the Court contained in Pt 49 of the Uniform Civil Procedure Rules 2005 (the "UCPR"). In particular, pursuant to r 49.19 of the UCPR, the Court is entitled to review any order made by a Registrar, and in so doing the Court can order any variation or discharge or other dealing with that order as it thinks fit. Although there are some exceptions to that power, they are inapplicable to the proceedings here. 16. In the Notice of Motion the plaintiffs sought the following operative orders: 1. Order that order 4 on 27 March 2023 of the Principal Registrar be set aside. 2. Order that the writ for possession of land be entered forthwith. 3. Costs. 1. A directions hearing was held with respect to the plaintiffs' Notice of Motion on 4 May 2023. At that time the first defendant, who is a respondent to the Motion, was represented and appeared before the Common Law Registrar. The representatives of the first defendant indicated that the orders sought in the Notice of Motion would be opposed. The Common Law Registrar made directions for the filing of evidence by the first defendant by 11 May 2023 and, further, that written submissions be filed by each of the parties. The matter was then fixed for hearing before me today. 2. The first defendant has not filed or served any affidavit evidence or any other evidence in response to the Motion. I also note that at no time since the Statement of Claim was served upon him has the first defendant filed any defence. As well, the first defendant has not filed or served any written submissions with respect to the Motion by the due date, nor at any later time. 3. Before the hearing today, the Court was informed by counsel and the solicitor who had appeared before the Common Law Registrar for the first defendant that they did not have instructions to appear today, and accordingly would not be appearing. There has been no appearance today by the first defendant. As is apparent, notwithstanding that he was living in the Property, at no time has the first defendant made any assertion that he has some claim to be entitled to be in possession of the land or to occupy it, being a claim cognisable by the law, and upon which he wishes to rely to resist the orders sought by the plaintiffs. 4. As I have said earlier, it is not possible to discern why the Principal Registrar made the decision which is the subject of the review, and the absence of reasons do not assist. 5. I have formed the conclusion that the Principal Registrar's order, which is sought to be reviewed, was wholly erroneous. The facts of the matter are that the plaintiffs served the Statement of Claim on the first defendant on 13 February 2023, at the latest. I do not think it came as a surprise to him at that time, given that his mother, who was also at one stage in possession of the Property, had been served in December 2022. At no time has the first defendant filed a defence, either in accordance with the rules or at all. The plaintiffs were entitled to default judgment and the orders which were made on 21 March 2023. Nothing had changed between 21 March 2023 and 27 March 2023 which would justify a setting aside of that default judgment order. 6. I am satisfied that the plaintiffs have established before me that this Court ought review the Principal Registrar's decision and, in so doing, that the Court ought order that Order 4 of the Principal Registrar of 27 March 2023 to set aside the default judgment for possession of land made on 21 March 2023, be discharged and set aside. The consequence of that is that the plaintiffs have the full benefit of the judgment which was entered by the Court on 21 March 2023. 7. For clarity, I note that the judgment of that date gave possession to the plaintiffs of the Property. 8. I note further that the judgment ordered the first defendant to pay the plaintiffs the sum of $2,405. For the avoidance of doubt, it is the entirety of those orders which are now operative as a consequence of my decision 'today. 9. The plaintiffs also seek in their Notice of Motion that they have leave to issue a writ of possession and that such writ for possession of the land be issued forthwith. The plaintiffs have been entitled to the Property since they became the registered proprietors in November 2022. As I have previously said, there is no basis proved in evidence as to why the first defendant has any legal claim to remain in possession of the Property. 10. The plaintiffs are entitled to possession and, accordingly, I order that a Writ for Possession of the land be issued forthwith. 11. In the absence of any appearance by the first defendant or anyone on his behalf, there is no reason to defer the execution of that writ. In short, the writ can be issued and it can be executed forthwith. No doubt the plaintiffs will need the assistance of the Sheriff to achieve that and will need to engage with the Sheriff to assess when that can occur. 12. It follows from my judgment that the first defendant should pay the plaintiffs' costs of the Notice of Motion and the proceedings generally, to the extent that there is no other specific order.