Terabond Pty Limited v Tsilfidis [2023] NSWSC 1397

Supreme Court New South Wales

Medium Neutral Citation: Terabond Pty Limited v Tsilfidis [2023] NSWSC 1397 Hearing dates: 24 October 2023 Date of orders: 24 October 2023 Decision date: 24 October 2023 Jurisdiction: Common Law Before: Ierace J Decision: Leave refused to the defendant to file the notice of motion in Court. Catchwords: CIVIL PROCEDURE – Possession of land – Application to access property – Where defendant previously granted adjournment to obtain legal representation – Where default judgment for possession subsequently granted to plaintiff – Whether leave ought be granted to file notice of motion in court Cases Cited: Terabond Pty Limited v Tsilfidis [2023] NSWSC 851 Terabond Pty Limited v Tsilfidis (No 2) [2023] NSWSC 1002 Category: Procedural rulings Parties: Terabond Pty Ltd (Plaintiff) Paul Tsilfidis (Defendant) Representation: Counsel: J Jordan (Sol) (Plaintiff) In person (Defendant)

Solicitors: Jordan Djundja Lawyers (Plaintiff) File Number(s): 2023/143351

EX Tempore JUDGMENT (Revised) 1. This is an application that comes before me as the Duty Judge from Paul Tsilfidis. It is effectively an application to file a notice of motion in Court. The orders sought in the notice of motion are stated to be: "(1) Access to Property, I have pets which are (see below) (as a matter of urgency please). (2) Continued access until hearing on 9/11/2023. The notice of motion is filled out in hand and bears today's date. 1. The matter is best understood against the background that on 19 July 2023, the plaintiff, Terabond Pty Ltd, came before the then Duty Judge, Dhanji J, with a notice of motion seeking orders for possession of certain land and judgment in the sum of $44,000, as well as a declaration that the defendant had no right to enter or occupy or remain on the land and, finally, an order restraining the defendant from interfering with or taking possession of the subject land and leave to issue a writ of possession. 2. When the matter commenced before Dhanji J, on the morning of that day, there was no appearance by the defendant and, consequently, the matter proceeded and evidence for the plaintiff was tendered. Subsequently, the defendant appeared in person and indicated that he wished to resist the plaintiff's claim. In a judgment (Terabond Pty Limited v Tsilfidis [2023] NSWSC 851) his Honour concluded that the defendant, in effect, sought an adjournment in order to obtain legal representation. His Honour granted the application and, as he did so, expressed reluctance but considered ultimately it was appropriate that the defendant be given a final opportunity to obtain representation. His Honour said: "21 Despite that unhappy history, having regard to the significance of the matters and their potential impact on the defendant, I am reluctantly minded to vacate today's hearing and stand the matter over. 22 The defendant should understand that he has been given a significant indulgence. He should understand that it is incumbent upon him to take steps to respond to the plaintiff's case and that if he fails to do so the consequences for him will be significant." 1. The matter next came before Weinstein J on 22 August 2023. There was no appearance by the defendant. In a judgment of that date (Terabond Pty Limited v Tsilfidis (No 2) [2023] NSWSC 1002), his Honour, who was sitting as the Duty Judge, noted that in his view, the defendant was well aware of the hearing date. His Honour said, at [5]: "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." 1. His Honour went on to deliver judgment for the plaintiff for possession of the land in question. As well, his Honour made an order declaring "that the defendant has no right to enter, occupy or remain upon the land". Thirdly, his Honour ordered "that the defendant be restrained from interfering upon or taking possession of the land". Fourthly, his Honour granted leave to issue a writ for possession of the land. Fifthly, his Honour ordered that "the defendant is to pay the plaintiff's costs as agreed or assessed". Sixthly, his Honour stood "that part of the plaintiff's claim against the defendant for mesne profits" before the Registrar on 29 August 2023. I understand from Mr Jordan, who appears for the plaintiff on this application today, that on that date, so far as Mr Jordan is aware, the Registrar set down the issue of the determination of mesne profits for 9 November 2023. 2. The defendant, Mr Tsilfidis, appears today without the benefit of legal representation. In oral submissions, he has informed the Court that he was unaware that orders had been made by Weinstein J requiring him to vacate the property. He points out that he was not in attendance on that date. However, Mr Jordan submitted that the Sheriff had written to both parties on 14 September 2023, effectively issuing a notice to vacate to the defendant. Mr Jordan's office received a letter attaching the notice the following day on 15 September 2023. On 30 August 2023, a solicitor from Mr Jordan's office, I am informed, sent by way of express post, as well as by email, a copy of the orders of Weinstein J to Mr Tsilfidis and a full copy of the judgment and some other documentation. The express post delivery was not returned and the email, to use the vernacular, did not bounce. 3. Mr Tsilfidis informs the Court that he did not receive the notice to vacate that had been sent by the Sheriff on 14 September 2023 until 21 October 2023, that being therefore the first time he was made aware of the need to vacate. Against that background, he contacted the Court yesterday and was informed he would not have to vacate before 9 November 2023, which is the date for hearing of the application for mesne costs. 4. The application to file in Court the notice of motion is opposed on the basis that it is a futile exercise, since it would be doomed to fail. The notice of motion is supported by a lengthy document of four pages of notes by the defendant, setting out his grievance in relation to the eviction. It is accompanied by a medical certificate dated 23 May 2023 in the hand of Dr M Lee addressed to "whom it may concern". It refers to the defendant having been referred to see a psychiatrist on 15 May 2007 and another psychiatrist on 21 September 2010. The note also states, "he told me today that he is seeing Dr Reynolds at Drug and Alcohol Unit of Canterbury Hospital". 5. The effect of the four pages of explanation is to raise an issue as to whether a sale of the property by Mr Tsilfidis to the plaintiff was a proper sale of the property. Effectively, there are two aspects to the orders that are sought in the draft notice of motion which, in my view, are matters that should have been raised before Weinstein J and Dhanji J. 6. The defendant's position is difficult because he has now been evicted from his home of many years. He has two dogs. I do not doubt that he has significant mental health and drug and alcohol issues. However, the Court has given the defendant ample opportunities previously to put his case as to why there should not be possession granted to the plaintiff and, in my view, the submission made by the solicitor for the plaintiff, Mr Jordan, that to grant leave to the defendant to file the notice of motion in Court would be an exercise in futility is made out. Accordingly, I decline the defendant leave to file the notice of motion. 7. I note that the plaintiff has offered to locate items that belong to Mr Tsilfidis on the premises and provide them to the plaintiff's solicitor, Mr Jordan, so that Mr Tsilfidis can collect those items. Significantly, those items include medication that I have no doubt Mr Tsilfidis needs, including methadone. It is a matter for Mr Tsilfidis if he takes advantage of that opportunity to have those items provided to him. I note that Mr Tsilfidis effectively says that he has no confidence that the plaintiff will do the right thing because he alleges that the plaintiff has damaged his property quite deliberately in the past. Nevertheless, that offer is made to Mr Tsilfidis if he wishes to take advantage of it. 8. Accordingly, my formal order is that I refuse leave to the defendant to file the notice of motion in Court.