Weinrauch v Martin [2013] NSWSC 1305

Supreme Court New South Wales

Medium Neutral Citation: Weinrauch v Martin [2013] NSWSC 1305 Hearing dates: 10 September 2013 Decision date: 10 September 2013 Jurisdiction: Common Law Before: Schmidt J Decision: Orders made in terms of the consent orders filed in Court marked MFI 1. Catchwords: PROCEDURE - possession of property - consent orders made Legislation Cited: Civil Procedure Act 2005 Category: Procedural and other rulings Parties: Pepi Weinrauch (Plaintiff) Leanne Martin (Defendant) Representation: Ms S Simms, solicitor (Plaintiff) Solicitors: EH Tebbutt & Sons (Plaintiff) Cragg Braye and Thornton (Defendant) File Number(s): 2013/194512 Publication restriction: None

EX TEMPORE Judgment 1HER HONOUR: These proceedings were commenced by statement of claim filed by the plaintiff on 26 June 2013, by which possession of a property at Murray's Run was sought. 2The plaintiff is the registered proprietor of the land and the defendant was alleged to be in occupation of the premises without the plaintiff's consent, having refused to vacate the premises. 3By defence filed in August 2013, the defendant claimed to have an interest in the property where she resided. She claimed that she had contributed to payments made in respect of a home loan which funded the purchase of the property, at a time during which she and the plaintiff were in a relationship with each other. 4The defence pleaded that the relationship had come to an end in 2009 and disputed the plaintiff's right to possession of the property, claiming an interest in land in respect of which the Family Court, rather than this Court, had jurisdiction. The defence did not, however, suggest that any family law proceedings had been taken by either party. 5Today, Ms Simms, appearing for the plaintiff and mentioning the appearance for the defendant, asks the Court to make consent orders in terms which provide for the defendant giving the plaintiff possession of the property and a regime thereafter, for the sale of the property, either by private treaty or auction; assigning responsibility for the maintenance of the property prior to its sale; and by order 13, that the proceeds of any sale will be deposited into the trust account of an identified solicitor and, after deduction of identified costs, that the net sale proceeds be divided equally between the parties. That, it is said by Ms Simms, is intended to give effect to a final resolution of the dispute which has brought the parties to the Court. 6In the circumstances, I am satisfied that it accords with the requirements of s 56 of the Civil Procedure Act 2005, which imposes an obligation on the Court to adhere to the underlying purpose of the legislation, namely the just, quick and cheap resolution of the real issues lying between the parties in the proceedings, to make the orders which the parties have agreed. 7Accordingly, by consent, I make orders in terms of the consent orders filed in Court today which I marked MFI 1.