ANZ v Elias - [2017] VSC 663

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

S CI 2016 02390

BETWEEN:

AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED	Plaintiff
v
SANDRA ELIAS	Defendant

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JUDGE:	Mukhtar AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	27 October 2017
DATE OF JUDGMENT:	27 October 2017
CASE MAY BE CITED AS:	ANZ v Elias
MEDIUM NEUTRAL CITATION:	[2017] VSC 663 First revision 9 November 2017

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EXECUTION – Mortgagee’s judgment for possession of land – Enforcement by warrant of possession – Warrant executed – Subsequent re-entry and hindrance by mortgagor – Rules silent on procedure to file and execute new warrant – Court’s power to allow filing of fresh warrant – Court’s ancillary power in aid of enforcement to restrain mortgagor from attempting another re-entry – Court’s coextensive inherent jurisdiction – Supreme Court (General Civil Procedure) Rules 2015 r 66.15.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Rogers, solicitor	Gadens
For the Defendant	No appearance

HIS HONOUR:

I have seen it fit to prepare these reasons as this application is a convenient opportunity for the Court to state its views, aided by the submissions received on behalf of the plaintiff today, on a problem which appears to be occurring with greater frequency in ordinary mortgagee possession cases. That is, cases where a mortgagee obtains a judgment for possession of mortgaged land; a warrant of possession is issued; the Sheriff executes the warrant and gains actual possession by changing the locks on the premises and possibly chaining entrance gates; and the mortgagor then re-enters the premises, re-changes the locks and re-chains the gates. This is precisely what occurred in this case.

In Perpetual Limited v Field,[1] I considered the question of the procedural step to be taken in this Court in the situation where a warrant of possession is executed; the judgment creditor is given actual possession (and therefore the warrant is spent); and later, the judgment debtor returns into possession by one means or another including a re‑changing of locks or a prevention of re-entry.
[1][2010] VSC 445.

In Field, I put to one side the possible availability of proceedings for contempt of court, or of a civil or criminal proceeding in trespass and looked to whether the Court could give leave to the judgment creditor to issue a fresh warrant under the authority of which the Sheriff could re‑take possession of the land. The problem is there is no provision in the Rules to deal with this situation. Rule 66.15 empowers the Court to ‘make such order as it thinks fit in aid of the enforcement of a warrant of execution’. But my view remains that, properly construed, that rule does not apply where the warrant has already been exercised or spent. After looking at some methods used in past cases, my judgment in Field concludes with the view that as the judgment for possession is valid and still subsists, there was no reason in principle why the judgment should not…

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 ANZ v Elias

Details

AGLC: ANZ v Elias [2017] VSC 663
Case: [2017] VSC 663
Decision Date: 27 October 2017

CaseChat Overview and Summary

In ANZ v Elias, the dispute centred on the enforcement of a mortgagee’s judgment for possession of land, which led to the execution of a warrant of possession. The mortgagor subsequently re-entered the premises and obstructed the mortgagee, ANZ, from taking possession. The mortgagor’s actions prompted ANZ to seek clarification on the procedure for filing and executing a new warrant. Additionally, ANZ sought to restrain the mortgagor from any further attempts to re-enter the property. The case was heard in the Supreme Court of New South Wales, where the primary legal issues involved the court’s power to allow the filing and execution of a fresh warrant and the court’s ancillary power to prevent the mortgagor from re-entering the property.

The court was required to interpret the relevant procedural rules and consider the scope of its inherent jurisdiction in aiding the enforcement of judgments. The primary focus was on Supreme Court (General Civil Procedure) Rules 2015 rule 66.15, which governs the execution of warrants of possession. The court examined whether there was a clear procedure outlined for filing and executing a new warrant after a previous one had been frustrated. Furthermore, the court considered whether its inherent jurisdiction could be exercised to restrain the mortgagor from re-entering the property, thereby preventing further obstruction of the mortgagee's rights.

The court determined that the rules were silent on the specific procedure for filing and executing a new warrant following a hindrance. It held that the court had the power to allow the filing of a fresh warrant to ensure the enforcement of the judgment. The court also found that its inherent jurisdiction could be exercised to restrain the mortgagor from re-entering the property. This power was considered necessary to prevent any further obstruction and to ensure the effective enforcement of the judgment. The court's decision was grounded in the need to uphold the rule of law and to provide a practical means for the mortgagee to execute the judgment.

In conclusion, the court granted ANZ’s application to file and execute a new warrant of possession. Additionally, it issued an order restraining the mortgagor from re-entering the property. This decision affirmed the court's capacity to address procedural gaps and to use its inherent jurisdiction to facilitate the enforcement of judgments. The orders ensured that ANZ could proceed with the possession of the property without further hindrance from the mortgagor.

Orders