Abram, Joseph v Bank of New Zealand Ltd

[1996] FCA 597

IN THE FEDERAL COURT OF AUSTRALIA  )
  )    No. NG622 of 1995
NEW SOUTH WALES                  )
DISTRICT REGISTRY                )
  )
GENERAL DIVISION                  )

BETWEEN:JOSEPH ABRAM

First Appellant

JEANETTE DAWN ABRAM

Second Appellant

AND:BANK OF NEW ZEALAND LIMITED

First Respondent

MICHAEL J FITZPATRICK
  Second Respondent

CORAM:BEAZLEY J

PLACE:    SYDNEY
DATE:     26 April 1996

MINUTES OF ORDERS

The Court orders:

1. There be no order as to the costs of the notice of motion dated 27 October 1995.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA  )
  )    No. NG622 of 1995
NEW SOUTH WALES                  )
DISTRICT REGISTRY                )
  )
GENERAL DIVISION                  )

BETWEEN:JOSEPH ABRAM

First Appellant

JEANETTE DAWN ABRAM

Second Appellant

AND:BANK OF NEW ZEALAND LIMITED

First Respondent

MICHAEL J FITZPATRICK
  Second Respondent

CORAM:BEAZLEY J

PLACE:    SYDNEY
DATE:     26 April 1996

REASONS FOR JUDGMENT

On 31 October 1995, I heard a notion of motion dated 27 October 1995 brought by the appellants seeking various orders.  It is not necessary to specify each of the orders sought, but it is convenient to classify the claims made in the notice of motion as follows:

1. A claim for a stay of orders made by Moore J on 11 August 1995.

1. A claim seeking to set aside a writ of possession which had been issued consequent upon his Honour's orders.

1. A claim asking that the time be extended in which the writ of possession could be enforced.

Foster J had refused an earlier stay application made by the applicants.  At the time of hearing the notice of motion, I expressed my reasons why I considered that the new application for a stay should not be granted.   There were however, some inadequacies in the notice to vacate which had been issued as a preliminary step to enforcing the writ of possession.  That inadequacy related to the naming of Michael J Fitzpatrick, the second respondent in the proceedings, as a claimant entitled to possession of the land.  Mr Fitzpatrick had no such entitlement.  Moore J's order relating to possession of the land was made in favour of the first respondent/cross claimant, the Bank of New Zealand.

It appears that the naming of Mr Fitzpatrick on the notice to vacate was an error.  However, the appellant submitted that the error caused confusion and submitted that the notice should be set aside.

It was not necessary for me to determine that issue as I had decided that the applicants ought to be granted a further short period of time in which to vacate the premises.  The effect of that proposed order meant that the notice to vacate which had issued became superfluous and a new notice to vacate would have to be issued if the applicants did not vacate the premises in the further time which I was prepared to allow.
The first respondent then sought costs of the notice of motion.  It submitted that the applicants had been unsuccessful on their motion save in respect of the discretionary aspect relating to the time during which the writ of possession should be postponed.  It submitted that as the applicants were seeking an indulgence from the court in that regard, they should bear the burden of costs.  That submission did not take into account the fact that I did not determine the question relating to the notice to vacate.  I consider that issue was one which was appropriately raised by the applicants as the notice to vacate contained a serious error.  There was no evidence as to who was responsible for the error.  It may have been made solely due to the fault of the sheriff.  The first respondent or its solicitors may have been responsible, either in whole or in part.  Whatever be the position, the first respondent defended its right to have the benefit of that notice.

I am of the view that the issue on the notice to vacate raised a serious question and may have affected the right of the first respondent to have possession enforced on the basis of it.

Accordingly, notwithstanding that the applicants sought an indulgence from the Court I am of the opinion that the appropriate order in the case is that there should be no order as to costs.

I certify that this and the preceding 3 pages
are a true copy of the Reasons for Judgment
of the Honourable Justice Beazley.

Associate:

Dated:    26 April 1996

APPEARANCES

Appellant in person:                 Mr Abram

Solicitors for the Respondents:      Mr David Cowling

Messrs Clayton Utz

Dates of hearing:  31 October 1995