ACN 062 895 774 Pty Ltd v Diane Tyndall [2006] NSWSC 19

New South Wales Supreme Court

CITATION : ACN 062 895 774 Pty Ltd v Diane Tyndall [2006] NSWSC 19

HEARING DATE(S) : 7 December 2005

JUDGMENT DATE : 2 February 2006

JUDGMENT OF : Sully J at 1

DECISION : Declare that the cross-claimant, Diane Tyndall, has valid lien over property 4 Carlow Crescent, Killarney Heights; Declare that Diane Tyndall is entitled to continue in possession of said property; Plaintiff's claim for possession dismissed; Plaintiff to pay costs of defendant in original claim and cross-defendant to pay cross-claimant's costs of cross-claim; Exhibits may be returned

CASES CITED : Hewett v Court (1983) 149 CLR 639 Lennards Carrying Co. Ltd. v Asiatic Petroleum Co. Ltd (1915) AC 705 at 713

PARTIES : ACN 062 895 774 Pty Ltd Diane Tyndall

FILE NUMBER(S) : SC 11110/04

COUNSEL : D. Durston - Plaintiff M. Sahade - Defendant

SOLICITORS : Gary Cassim & Assoc. - Plaintiff Comino Prassas - Defendant

- 22 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SULLY J

2 February 2006

11110/04 - A.C.N 062 895 774 PTY LTD. v Diane TYNDALL

JUDGMENT

SULLY J:

Introduction 1 By a Statement of Claim filed on 20 April 2004 a Body Corporate which is styled ACN 062 895 774 Pty Limited commenced as plaintiff an action at law seeking a judgment in its favour for the possession of certain premises being residential premises known as 4 Carlow Crescent, Killarney Heights ("the subject premises"). The Statement of Claim seeks, as well, orders for mesne profits and costs. When the proceedings came on for hearing in this Court the claim for mesne profits was expressly abandoned. 2 The Statement of Claim cites as defendant Miss Diane Tyndall, and pleads against her these propositions: 1. "The Plaintiff is the registered proprietor of land and premises known as 4 Carlow Crescent, Killarney Heights, NSW ('the premises'). 2. The defendant is in occupation of the premises as a trespasser. 3. The Plaintiff has been deprived of the use and enjoyment of the premises and has thereby suffered loss and damage." 3 On 4 February 2005 the defendant filed a verified Amended Defence and, separately, a verified Cross-claim. The Amended Defence traverses each of the three propositions advanced in the Statement of Claim; admits that in fact the Defendant resides in the subject premises; and pleads, in answer to the whole of the Plaintiff's claim, an equitable lien. It will be necessary to return later herein to the precise terms of the lien thus pleaded. The separately pleaded Cross-claim re-pleads the defences of current possession and of equitable lien and claims thereupon the following relief: "1. A declaration that the Cross-Claimant ("Tyndall") has a valid lien over the property being Lot 42 in Deposited Plan 215008 known as 4 Carlow Crescent Killarney Heights NSW ("the Property") in respect of a debt owed to her in connection with the Property as represented by the judgement of this Court in her favour in proceedings 1594 of 1998. 2. A declaration that Tyndall is entitled to continue possession of the Property until the debt, the subject of the lien referred to in 1 above, has been satisfied. 3. A declaration that the interest (if any) of the Cross-Defendant ("CDCS") in the Property, is subject to the lien of Tyndall referred to in 1 above. 4. Further and in the alternative, a declaration that Tyndall has an equitable interest in the Property. 5. Further and in the alternative, a declaration that the interest of Tyndall in the Property, has priority over the interest (if any) of CDCS in the Property. 6. Such further or other order as to the Court seems just. 7. Costs." 4 On 14 March 2004 the plaintiff filed a verified Defence to the cross-claim. It will be necessary to return later herein to the precise terms of that pleading. 5 At the commencement of the hearing before this Court learned counsel for the plaintiff informed the Court, with the agreement of learned counsel for the defendant, that it was not in dispute: "……………….that the plaintiff is the owner of the property and has to comply with all the technical steps necessary for possession and the only issue is whether the defendant's claim for an equitable lien is made out." 6 The hearing before this Court proceeded upon that basis. 7 The plaintiff neither called nor tendered any evidence. The defendant herself gave oral evidence; and she read and relied upon the contents of an affidavit which she had sworn on 15 April 2005, there being exhibited to that affidavit a folder of documents which was admitted as exhibit D1. The defendant tendered, and I admitted as exhibit D2, a Notice to Admit Facts. To the contents of this document, also, it will be necessary to return later herein