Kannisto v Kannisto [2019] NSWSC 245

Supreme Court New South Wales

Medium Neutral Citation: Kannisto v Kannisto [2019] NSWSC 245 Hearing dates: 8 March 2019 Date of orders: 08 March 2019 Decision date: 08 March 2019 Jurisdiction: Common Law Before: Davies J Decision: Defence filed 11 February 2019 struck out. Catchwords: LAND LAW – possession of land – licence agreement between father and son – licence terminated – proceedings seeking possession – defence filed discloses no defence to the claim – defence struck out Category: Procedural and other rulings Parties: Veikko Kaino Kannisto (Plaintiff) Jorma Kalevi Kannisto (Defendant) Representation: Counsel: N Condylis (Plaintiff) No appearance (Defendant)

Solicitors: Owen Hodge Lawyers (Plaintiff) Self-represented (Defendant) File Number(s): 2019/13401

Judgment 1. The plaintiff is the registered proprietor of land at 119 Lakeslands Drive at Dapto. The defendant is the son of the plaintiff. The defendant has been in occupation of the property for some nine to ten years. It appears that the arrangement was a form of licence between the plaintiff and the defendant. I am informed that the proceedings were originally commenced in NCAT but it was determined in that tribunal that there was not a residential tenancy agreement and that the tribunal had no jurisdiction to deal with the matter. It is in those circumstances that the Statement of Claim was filed in this court on 14 January 2019. 2. The plaintiff appointed Michelle Joan Fisher and Rachel Grace Fisher as attorneys and guardians under an Enduring Power of Attorney dated 13 May 2016. It is those persons who are the moving parties behind the present proceedings although they are correctly brought in the plaintiff's name. 3. The Statement of Claim discloses that on either 22 or 27 August 2018 and again on 3 September 2018 the defendant was served with a Notice to Vacate the property. He has not done so. In response to the service upon him of the Statement of Claim the defendant has filed a document headed "Defence". The document contains a short narrative and annexes a number of documents. The narrative indicates that the property is his home, that he is a man of limited means, that he cannot afford a solicitor, that he has nowhere else to go and that Legal Aid, presumably to assist him, was limited. 4. The other documents that are annexed to the Defence appear to be addressed to NCAT and include a document which is headed "Application to Cancel a Power of Attorney" dated 17 October 2018. Upon inquiries being made by me, I was informed by Mr Condylis of counsel for the plaintiff that that is a document signed by the defendant. It is not a revocation of the Power of Attorney executed by the plaintiff. 5. There is nothing in the document entitled "Defence" which discloses any defence to the claim known to the law. The relationship between the parties appears to be that of licensor and licensee, and that licence has been brought to an end by the notices given to the defendant requiring him to vacate the property. 6. When the proceedings were before the Prothonotary on 25 February 2019 there was no appearance for the defendant. The proceedings were adjourned for judicial directions before me today. The court notified the defendant of the directions today in a letter dated 25 February 2019. In addition the plaintiff's solicitors forwarded a letter dated 25 February informing the defendant of the directions on that day and the fact that they had been adjourned to today. They notified him in that letter that they were seeking formal orders for possession and suggested he obtain legal advice. There is no appearance of the defendant today before me. 7. In those circumstances the defence filed 11 February 2019 is struck out. The proceedings are adjourned to Friday, 15 March at 2.30pm before me for the making of further orders.