AXA Trustees Limited v Ergun [2000] NSWSC 872

New South Wales Supreme Court

CITATION : AXA Trustees Limited v Ergun [2000] NSWSC 872 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 11163/2000 HEARING DATE(S) : 23 August 2000 JUDGMENT DATE : 31 August 2000

AXA Trustees Limited (Plaintiff) PARTIES : Mehmet Ergun (Defendant) JUDGMENT OF : Master Harrison

Mr E Finnane (Plaintiff) COUNSEL : Mr D K L Raphael (Defendant) Peter Cornelius & Partners (Plaintiff) SOLICITORS : Penhall & Co (Defendant) CATCHWORDS : Summary judgment - Possession LEGISLATION CITED : Supreme Court Rules - Part 13 r 2 Air Services Australia v Zarb (NSWSC unreported, 26 August 1998) Dey v Victorian Railway Commissioners (1948-49) 78 CLR 62 General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 CASES CITED : Webster & Anor v Lampard (1993) 177 CLR 598 Kurt Keller v BMW Australia (1984) 1 NSWLR 371 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 Commonwealth of Australia v Verwayen (1989-90) 170 CLR 394 DECISION : See para 27

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THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER HARRISON

THURSDAY, 31 AUGUST 2000

11163/2000 - AXA TRUSTEES LIMITED v MEHMET ERGUN

JUDGMENT (Summary judgment - Possession)

1 MASTER: By notice of motion filed 23 June 2000 the plaintiff seeks that the defendant's defence, or part of the defence, be struck out pursuant to Part 13 r 2 of the Supreme Court Rules (SCR). The plaintiff did not rely on any affidavit evidence. The defendant relied on his affidavit sworn 12 July 2000. 2 By statement of claim filed 15 May 2000 the plaintiff (as lessor) seeks possession from the lessee (as lessee) of the property known as Shop 5.5, Food Court, Level 7, MMI Centre, 2 Market Street, Sydney (the premises), being part of the land in Folio Identifier 31789759. It is common ground that the plaintiff and the defendant entered into a lease for a term of 5 years commencing on 1 April 1995 and terminating on 31 March 2000. The lease has expired. 3 On 12 July 2000 the defendant put the plaintiff on notice that he wishes to amend his defence to plead: "As to paragraph 6 of the Statement of Claim, the Defendant does not admit that what purported to be a Notice to Vacate is:- a. A valid Notice to Vacate; b. Has the effect of a Notice to Quit. c. Was given and served in accordance with the requirements of the Lease."