Dominello v Thompson [2011] NSWSC 1455

Supreme Court New South Wales

Medium Neutral Citation: Dominello v Thompson [2011] NSWSC 1455 Hearing dates: 24 November 2011 Decision date: 30 November 2011 Jurisdiction: Common Law Before: Adamson J Decision: (1) A declaration that the defendant is not entitled to enter onto or occupy the land being the whole of the land contained in Certificate of Title folio identifier Lot C DP 334634 and known as 3 Wattle Road, Ingleside (the Property). (2) Judgment for the plaintiff for possession of the Property. (3) Order that the Plaintiff have leave to issue a writ of possession forthwith. (4) Dismiss the Amended First Cross-claim. (5) Order the defendant to pay the plaintiff's costs of the proceedings. Catchwords: PROPERTY - possession of land - whether an agreement entered into Legislation Cited: - Conveyancing Act 1919 (NSW) - s 23C, s 23D, s 23E, s 127 Cases Cited: - Masters v Cameron (1954) 91 CLR 353 Category: Principal judgment Parties: Giuseppina Dominello (aka Josephine) (Plaintiff) Jacqueline Thompson (Defendant) Representation: Counsel: S. El-Hanania (Sol) (Plaintiff) In person (Defendant) Solicitors: Saba El-Hanania Lawyer (Plaintiff) In person (Defendant) File Number(s): 2011/039212

Judgment

Introduction 1The principal issue in this case is whether there was a binding agreement which permitted the defendant to occupy an area of land owned by the plaintiff, and if so, whether that agreement remains on foot. The plaintiff's case is that no such agreement was entered into and the defendant has, at all material times, been a trespasser on the land. In the alternative, the plaintiff says that any such agreement as was entered into has been terminated in accordance with its terms. 2The plaintiff seeks an order for possession, a writ of possession and an order for costs. Although her Statement of Claim contains prayers for damages and mesne profits, these prayers were not pressed at the hearing of the matter. The defendant resists the plaintiff's claim for possession on the basis of an alleged lease for a term of five years. She also claims damages for breach of the covenant of quiet enjoyment that she alleges arises as a result of a lease granted to her by the plaintiff.