Felsch v Hetherington [2023] NSWSC 1411

Supreme Court New South Wales

Medium Neutral Citation: Felsch v Hetherington [2023] NSWSC 1411 Hearing dates: 20 November 2023 Date of orders: 20 November 2023 Decision date: 20 November 2023 Jurisdiction: Common Law Before: Davies J Decision: 1. Judgment for plaintiffs for possession of the land described as Lots 2 & 4 Deposited Plan 14117 (Auto Consol 4268-68) and known as 48 Bogan Street, Parkes NSW. 2. Leave to the plaintiffs to issue a writ of possession. 3. Stand over the balance of the Statement of Claim for further directions before Davies J at 9:30am on 9 February 2024. 4. Liberty to apply on two days' notice. Catchwords: LAND LAW – possession of land – where plaintiffs are executors – where one beneficiary in the will has remained in possession – where defendant has not appeared – claim for possession and mesne profits – default judgment given for possession Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Nil Texts Cited: Nil Category: Procedural rulings Parties: Carole Lana Felsch (First Plaintiff) Wayne Stephen Hetherington (Second Plaintiff) Russell James Hetherington (First Defendant) Representation: Counsel: S Hill (Plaintiffs) No appearance (Defendant)

Solicitors: Bell Lawyers (Plaintiffs) Unrepresented (Defendant) File Number(s): 2023/158632 Publication restriction: Nil

Judgment 1. These proceedings commenced on 18 May 2023. In the statement of claim, the plaintiff sought judgment for possession of land at 48 Bogan Street, Parkes but also sought, in effect, mesne profits by reason of the defendant remaining in occupation of the land. 2. The right of the plaintiffs to recover possession arises because they are the executors of the will of Valerie Nancy Hetherington who died on 7 June 2010. Mrs Hetherington left a will dated 22 November 1996 appointing the plaintiffs executors, and leaving the whole of her estate to her three children, who are the plaintiffs and the defendant. The defendant has been in actual occupation of the land since the date of Mrs Hetherington's death. The plaintiffs need to obtain possession to administer the estate. 3. On 6 August 2014, by a transmission application, the property came to be registered in the names of the plaintiffs. Notices to vacate were issued to the defendant on 11 March 2019 and 22 June 2021, but those notices have not been complied with. 4. When the defendant did not file either a notice of appearance or a defence, after service of the statement of claim upon him, the plaintiff filed a notice of motion on 7 September 2023 seeking default judgment for possession of the land, and that the balance of the proceedings be stood over for determination at a later time. 5. The matter was referred to me by the Registrar because of some doubt about whether the Registrar had the power under the rules to give default judgment for one but not both of the claims pleaded, and by reason of the plaintiffs as executors seeking possession. In my opinion, r 16.8 of the Uniform Civil Procedure Rules 2005 (NSW) enables default judgment to be given on one claim but not the other claim. 6. Although the defendant has not filed a notice of appearance or a defence, he has been given notice of a number of prior directions hearing before the Registrar but on no occasion has he appeared. In the circumstances, the plaintiff is entitled now to default judgment for possession, with the remaining claim for mesne profits to be adjourned to a later date. 7. Accordingly, I will make these orders: 1. Judgment for plaintiffs for possession of the land described as Lots 2 & 4 Deposited Plan 14117 (Auto Consol 4268-68) and known as 48 Bogan Street, Parkes NSW. 2. Leave to the plaintiffs to issue a writ of possession. 3. Stand over the balance of the Statement of Claim for further directions before Davies J at 9:30am on 9 February 2024. 4. Liberty to apply on two days' notice.