Terabond Pty Ltd v Tsilfidis (No 4) [2024] NSWSC 751

Supreme Court New South Wales

Medium Neutral Citation: Terabond Pty Ltd v Tsilfidis (No 4) [2024] NSWSC 751 Hearing dates: 19 June 2024 Date of orders: 19 June 2024 Decision date: 19 June 2024 Jurisdiction: Common Law Before: Garling J Decision: (1) Order the entry of judgment in favour of the plaintiff against the defendant in the sum of $100,682.45 consisting of: (a) Mesne profits: $95,494.73; and (b) Interest on mesne profits pursuant to s 100 of the Civil Procedure Act 2005: $5,187.72. (2) Order the defendant to pay the plaintiff's costs. Catchwords: POSSESSION OF LAND – Claim for mesne profits – Where the defendant remained in possession of the property following notices to vacate – No issue of principle – Mesne profits and interest awarded. Legislation Cited: Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005 Cases Cited: Lamru Pty Limited v Kation Pty Limited (1998) 44 NSWLR 432 Terabond Pty Limited v Tsilfidis [2023] NSWSC 1397 Terabond Pty Ltd v Tsilfidis (No 2) [2023] NSWSC 1002 Texts Cited: Not Applicable Category: Principal judgment Parties: Terabond Pty Ltd (P) Paul Tsilfidis (D) Representation: Counsel: J Kadar (P) No Appearance (D)

Solicitors: Djundja Lawyers (P) File Number(s): 2023/143351 Publication restriction: Not Applicable

EX TEMPORE JUDGMENT

Relevant Facts 1. On 6 December 2019 the plaintiff, Terabond Pty Limited ("Terabond"), exchanged contracts with the defendant, Mr Paul Tsilfidis, for the purchase by the plaintiff from him of a property on New Canterbury Road at Dulwich Hill. On 12 June 2020 that purchase settled. Thereafter, Terabond has been the registered owner of the Dulwich Hill property. 2. On 12 June 2020, shortly prior to the settlement occurring, an oral agreement was entered into by which a director of Terabond, Mr Gav, agreed with the defendant that he could remain living in the upstairs part of the building for an unspecified period of time. That occupation was upon the condition that when Mr Gav, on behalf of Terabond, asked the defendant to leave, he was required to leave promptly and without dispute. In that conversation, it was noted that Mr Gav could not give the defendant any guarantee that he could remain in residence for more than three months. It was on that basis that the defendant remained in occupation. I note that that occupation did not require him to pay any moneys by way of rental, nor by way of electricity bills or other outgoings. It was, on all hands, a very generous arrangement for the defendant. 3. Notices to Vacate were served on the defendant on or about 19 March 2021, 14 April 2021, 30 April 2021 and 28 April 2023. The defendant did not vacate at any time in accordance with those notices. In my view, each and all of those notices clearly constituted requests by Terabond to the defendant to leave the premises and to cease his occupation, precisely as contemplated by the oral agreement entered into on 12 June 2020. The defendant did not leave.