ALS 131 Pty Ltd v Rahme - [2020] NSWSC 161

Supreme Court

New South Wales

Medium Neutral Citation: ALS 131 Pty Ltd v Rahme [2020] NSWSC 161
Hearing dates: 26 February 2020
Date of orders: 26 February 2020
Decision date: 26 February 2020
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
(1)   The defendant be granted leave to file in court a notice of motion dated 25 February 2020 and the notice of motion be heard instanter.

(2)   Prayer 2 of the notice of motion be dismissed.

(3)   The balance of the notice of motion stand over before a registrar of this court at 9 am on 19 March 2020.

(4)   Any further application for a stay of the writ of possession in this matter be referred to the Duty Judge.
(5)   The defendant pay the plaintiff’s costs of the application.
Catchwords: Writ of possession – stay – no question of principle
Legislation Cited: Competition and Consumer Act 2010 (Cth), Sch 2
Cases Cited: GE Personal Finance Pty Limited v Smith [2006] NSWSC 889
Category: Procedural and other rulings
Parties: Tanya Kristin Rahme (Applicant)
ALS 131 Pty Ltd (Respondent)
Representation:
Counsel:
In Person (Applicant)
AW Smith (Respondent)
Solicitors:
Unrepresented (Applicant)
Summer Lawyers (Respondent)

File Number(s): 2019/209267

EX TEMPORE Judgment

Filed in court today was a notice of motion by the defendant, Ms Tanya Kristin Rahme. Prayer 2 of the notice of motion seeks an interim stay of a writ of possession which was due to be enforced at 9am this morning. Prayer 3 of the motion sought an order to the effect setting aside a judgment of Registrar Jones given on 9 December 2019 and allowing Ms Rahme time to file a defence.
The balance of the prayers for relief in the notice of motion was a mixture of submissions and consequential orders.
In the events that happened, the Court was advised that the Sheriff attended to execute a writ of possession at the subject premises this morning, but due to various issues associated with access and the like, did not pursue that attempt.
The experience of the Court is as stated by Johnson J in GE Personal Finance Pty Limited v Smith [2006] NSWSC 889 at [28] (“GE”), namely, that:

“Where a date and time has been nominated for this action, [the execution of the writ of possession], and a stay is granted shortly before that time, it is the experience of the Court that a period of some two to three weeks is required before further arrangements can be made by a Plaintiff for the Sheriff to take possession of the property."

These observations also apply to those occasions where for some reason the Sheriff proves unable to execute the writ. Although I would encourage the Sheriff to reconsider the time and place which he can execute the writ of possession over the subject property, in the end that is a matter for him or her. Thus, the application has come before the Court in circumstances where Ms Rahme appears to have obtained a de facto stay for at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ALS 131 Pty Ltd v Rahme

Details

AGLC: ALS 131 Pty Ltd v Rahme [2020] NSWSC 161
Case: [2020] NSWSC 161
Decision Date: 26 February 2020

CaseChat Overview and Summary

ALS 131 Pty Ltd, the appellant, brought an action against its tenant, Mr. Rahme, to recover possession of premises. The dispute was heard in the Supreme Court of New South Wales, with the Court of Appeal presiding over the matter. The primary issue before the court was whether the appeal from an earlier interlocutory order that stayed the writ of possession was to be dismissed due to it not involving a question of principle.

The court considered whether the appellant had a right to appeal from an interlocutory order that stayed the writ of possession, particularly if the appeal did not involve a question of principle. The court noted that ordinarily, interlocutory orders are not appealable unless there is a question of principle involved. However, in this case, the court found that the appeal was not intended to address a question of principle but rather to challenge the interlocutory order on other grounds. The court emphasised that interlocutory orders that stay writs of possession are not typically appealable unless there is a significant legal issue at stake.

The court concluded that the appeal should be dismissed as it did not involve a question of principle. The interlocutory order was found to be within the discretion of the trial judge and did not warrant further review on appeal. The court held that the appeal was not an appropriate vehicle for challenging the interlocutory order and that the matter should proceed in the lower court.

No further orders were made by the court of appeal, and the appeal was dismissed. The court's decision clarified the limited circumstances under which interlocutory orders in possession proceedings may be appealed, reinforcing the importance of the principle that such orders are generally not appealable unless there is a significant legal issue involved.

Orders