New South Wales Supreme Court CITATION : Wilenski v Jankowski [2007] NSWSC 277 HEARING DATE(S) : 2 March 2007 JUDGMENT DATE : 2 March 2007 JURISDICTION : Equity Division JUDGMENT OF : Windeyer J at 1 EX TEMPORE JUDGMENT DATE : 2 March 2007 DECISION : Default judgment in want of defence in favour of the plaintiff. CATCHWORDS : PRACTICE – Default judgement – Default in filing defence – No appearance of defendant at hearing – Defendant taken to have received notice of proceedings PARTIES : Elzbieta Wilenski (Plaintiff) Andrezj Jankowski (Defendant) FILE NUMBER(S) : SC 1347 of 2006 COUNSEL : M B Evans (Plaintiff) No Appearance (Defendant) SOLICITORS : O'Brien Lawyers (Plaintiff) No Appearance (Defendant) - 3 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EXPEDITION LIST WINDEYER J FRIDAY 2 MARCH 2007 1347/06 ELZBIETA WILENSKI v ANDREZJ JANKOWSKI JUDGMENT 1 HIS HONOUR: In this matter the defendant has not appeared in court today. I have already explained that a medical certificate was forwarded by facsimile to the court, but, in spite of that, in my view it is proper for the court to proceed to determine this matter today. The main reason I do so, apart from the fact the court cannot just act on facsimile certificates, which in themselves are not proved, is that no defence has been filed on the statement of claim which was served on 8 February 2006. 2 The defendant was originally represented by solicitors, Messrs Baldock Stacy & Niven. While there is no appearance on the file, there is on file a notice of intention to cease to act as solicitor. There were appearances for the defendant, from time to time, when the matter was before the court for directions, but mostly where there has been an appearance, it has been by the defendant in person. It is perfectly clear that the defendant has been served and, therefore, I dispense with the requirement for an affidavit of service. 3 I have noted the affidavit of the plaintiff's solicitor sworn 1 March 2007, as to his informing the defendant of today's hearing, and, as I have said, the defendant can be taken to have received that letter because the doctor's certificate, or the note accompanying it, refers to the hearing today at 11.30 am. 4 There is a further requirement under Rule 16.3 of the Uniform Rules that an application for default judgment should be accompanied by an affidavit in support of the application. The only need for that in the present case, as I understand it, as it is a default judgment, would be to establish that none of the moneys which the plaintiff claims were held on trust for her or which she claims to have lent to the defendant have been repaid. It seems to me that although this may not be strictly required, that evidence ought to be given. 5 There is evidence from the plaintiff that she has not received any moneys from the defendant being the moneys referred to in paragraph 6 and paragraph 9 of the statement of claim. There being no defence, the plaintiff is entitled to judgment by default in respect of these matters, the subject of this claim. 6 I make the following orders: 1. Order in terms sought in paragraph 1 of the statement of claim omitting therefrom everything after "2003". 2. Order in terms sought in paragraph 2 omitting therefrom everything after "2004". 3. Order in terms sought in paragraph 3 of the statement of claim omitting therefrom everything after the words "in fee simple" where it second appears. 4. Order in terms sought in paragraph 4 of the statement of claim adding the following words after "Crows Nest": "Including handing the certificate of title to the plaintiff or her solicitor". 5. I make the order in paragraph 5. 6. I make the declaration in paragraph 6. 7. In paragraph 7 I make the order but after the words "order 6" inserting (a) and (c), so that it will read "referred to in orders 6(a) and 6(c) above". 8. I make the declaration in paragraph 8 omitting from paragraph 8 the words "further or in the alternative to order 6(b) above". I make the following additional orders: 8A. Order that the defendant transfer the Parramatta property to the plaintiff. 8B. In the event the defendant fails or refuses to comply with order 8A within 30 days of the making of this order, order that a registrar of the court be empowered to execute all documents necessary to effect the transfer. 9. I enter judgment in accordance with paragraph 9. 10. Order the defendant to pay the plaintiff's costs. 11. The exhibits should remain with the file. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.