Petronaitis v Petronaitis [2008] NSWSC 798

New South Wales Supreme Court

CITATION : Petronaitis v Petronaitis [2008] NSWSC 798

HEARING DATE(S) : 31 July 2008

JUDGMENT DATE : 7 August 2008

JURISDICTION : Common Law

JUDGMENT OF : Harrison AsJ

(1) The amended defence dated 24 June 2008 is struck out. DECISION : (2) A stay of proceedings is refused. (3) I enter judgment that the plaintiff have possession of the property as described in paragraph (1) of the statement of claim. (4) The defendant is to pay the costs of both motions.

CATCHWORDS : Strike out defence, stay of proceedings

CATEGORY : Principal judgment

PARTIES : Kay Petronaitis by her tutor Michael Victor Petronaitis (Plaintiff) Dalia Petronaitis (Defendant)

FILE NUMBER(S) : SC 14665/2007

COUNSEL : P Jeffriess (Plaintiff)

SOLICITORS : Everingham Solomons (Plainitff) John Samuel Sheehy (Defendant)

LOWER COURT JURISDICTION : Guardianship Tribunal

LOWER COURT FILE NUMBER(S) : C/33754; 2008/155

LOWER COURT JUDICIAL OFFICER : Tribunal Members Hopkins, Stone & Newman

LOWER COURT DATE OF DECISION : 8 January 2008

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION POSSESSION LIST

ASSOCIATE JUSTICE HARRISON

THURSDAY, 7 AUGUST 2008

14665/2007 - KAY PETRONAITIS by her tutor MICHAEL VICTOR PETRONAITIS v DALIA PETRONAITIS

JUDGMENT (Strike out defence, stay of proceedings) 1 HER HONOUR: There are two motions before the Court. Firstly, by notice of motion filed 24 June 2008 the defendant seeks and order that the proceedings be stayed pending the hearing and determination of the defendant's application to revoke a financial management order made in the Guardianship Tribunal on 8 January 2008, file No c/33754, matter No 2008/155; and secondly, by notice of motion filed 1 July 2008, the plaintiff seeks an order that the amended defence filed in Court on 24 June 2008 be struck out or in the alternative, that summary judgment be entered in favour of the plaintiff. 2 The plaintiff is Kay Petronaitis by her tutor Michael Victor Petronaitis. The defendant is Dalia Petronaitis. The plaintiff relied on three affidavits of Michael Petronaitis dated 2 August 2007, 29 April 2008 and 23 July 2008 and three affidavits of his solicitor John McCallum Boyd Boag dated 2 August 2007, 29 April 2008 and 25 July 2008. The defendant relied on the affidavit of her solicitor John Samuel Sheehy dated 23 June 2008 and her affidavit dated 30 July 2008. Mrs Kay Petronaitis and her daughter were present in Court at the hearing of these motions. 3 Michael and John Petronaitis are the sons of Kay Petronaitis. The defendant, Dalia Petronaitis, is the plaintiff's daughter. The plaintiff is the registered proprietor of land at Bronte described in Certificate of Title Folio Identifier 12/1087188. From 2003 until early 2007, the defendant lived with her mother in the premises at Bronte. In early 2007, the plaintiff moved into a nursing home. 4 By amended defence filed 24 June 2008, the defendant pleads firstly, that the plaintiff, having sufficient mental capacity, has indicated to the defendant that she wishes to again occupy the premises with the defendant; and secondly, that the defendant claims a right of occupation to the home during protected person's lifetime granted orally to her by the protected person, which the protected person intends to grant in writing. The defendant's solicitor rightly conceded that at best this defence could amount to an equitable interest that does not give the defendant the right to possession of the property.