Bailey v Boyd [2018] NSWSC 477

Supreme Court New South Wales

Medium Neutral Citation: Bailey v Boyd [2018] NSWSC 477 Hearing dates: 29 March 2018; 12 April 2018 Date of orders: 12 April 2018 Decision date: 12 April 2018 Jurisdiction: Common Law Before: N Adams J Decision: (1) Pursuant to UCPR r 14.28, the joint defence filed and served by the first and second defendant on 25 February 2018 is struck out.

(2) Judgment for the plaintiff against the first and second defendant for possession of the property comprised in 10/DP28150 being the land situated at 12 Fletcher Avenue Miranda.

(3) That the defendants pay the plaintiff's costs of the motion on 29 March 2018 and 11 April 2018 on an indemnity basis.

(4) That the defendants pay the plaintiff's costs of the proceedings generally on the ordinary basis Catchwords: REAL PROPERTY – trustees appointed to sell the defendants' residence following a finding that moneys paid into the mortgage were obtained by way of an unconscionable gift - where defendants resist sale as they disagree with binding court orders confirmed by the Court of Appeal – where no special leave to appeal to the High Court sought - whether defence should be struck out for untenable grounds – whether summary judgment should be granted – whether indemnity costs should be ordered Legislation Cited: Civil Procedure Act 2005 (NSW), s 98 Conveyancing Act 1919 (NSW), s 66G Uniform Civil Procedure Rules, rr 13.1, 13.4, 14.28 Cases Cited: Boyd v Thorn [2017] NSWCA 210 Catherine Margaret Thorn, as Executrix of the Estate of the late Berry McAuley v Ian Geoffrey Boyd [2014] NSWSC 1159 Catherine Margaret Thorne, as executrix of the Estate of the late Betty McAuley v Ian Geoffrey Boyd and Dawn Kathleen Boyd [2016] NSWSC 1344 Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225; [1993] FCA 801 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 Spellson v George (1992) 26 NSWLR 666 State of New South Wales v Williams (2014) 242 A Crim R 22; [2014] NSWCA 177 Category: Principal judgment Parties: Liam Bailey (First Plaintiff) Timothy Daley (Second Plaintiff) Ian Geoffrey Boyd (First Defendant) Dawn Kathleen Boyd (Second Defendant) Representation: Counsel: Mr A Cornish (Plaintiff) Mr D Raphael (First and Second Defendant)