Australia and New Zealand Banking Group Ltd v Rafferty

[2018] NSWSC 960

Supreme Court

New South Wales

Medium Neutral Citation:

Australia and New Zealand Banking Group Ltd v Rafferty [2018] NSWSC 960

Hearing dates:

22 June 2018

Date of orders:

22 June 2018

Decision date:

22 June 2018

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1.   Leave to the Plaintiff to move ex parte on its Notice of Motion dated 22 June 2018 seeking writ of restitution.

 

2.   Leave to the Plaintiff to issue a writ of restitution to restore to the plaintiff possession of the land comprised in folio identifier 40/16/1389 being the land situated at and known as 8 Marion Street (also known as 8 Manon Street), Auburn in the State of New South Wales.

 

4.   Execution of writ of restitution not to be before 7 July 2018.

 

5.   Plaintiff’s solicitors to notify occupiers by no later than 5pm on 26 June 2018 of orders made today and in particular that a writ of restitution is to be or has been issued. Notification may be made in person or mail.

 6.   Liberty to Plaintiff, Defendant and Occupiers to apply on 2 days’ notice.

Catchwords:

JUDGMENTS AND ORDERS – order for possession - writs of restitution – where occupiers re-took possession after execution of writ of possession – whether occupiers were strangers to the possession proceedings – whether leave to issue the writ should be given ex parte

Legislation Cited:

Civil Procedure Act 2005 (NSW).
Sheriff Act 2005 (NSW)

Cases Cited:

Firstmac Fiduciary Services Pty Limited v Gilmour (No 2) [2013] NSWSC 416
Maher v Commonwealth Bank of Australia (No 2) [2004] FCA 1398
Perpetual v Kelso [2008] NSWCA 906
St George Bank v Udowenko and Ors [2010] NSWSC 1289

Texts Cited:

Nil

Category:

Procedural and other rulings

Parties:

Australia and New Zealand Banking Group Ltd (Plaintiff)
Jenny Rafferty (Defendant)

Representation:

Counsel:
R Lewin (Plaintiff) (ex parte)

  Solicitors:
Dentons Australia (Plaintiff)

File Number(s):

2017/233721)

Publication restriction:

Nil

Judgment

1. These proceedings commenced on 1 August 2017 by the filing of a statement of claim seeking inter alia possession of the whole of the land at 8 Marion Street Auburn (also known as 8 Manon Street, Auburn). The basis for the claim was that there had been default under a loan agreement dated 3 August 2016 and that loan agreement was secured by a mortgage over the property. There was no defence filed to the statement of claim and default judgment was given on 7 December 2017. Subsequently a writ of possession was issued on 4 April 2018.

2. In accordance with section 7A of the Sheriff Act 2005 (NSW) the sheriff gave a notice to vacate to the occupiers of the land. The notice to vacate informed the occupiers that they must vacate the property by Friday 25 May or action would be taken to evict them without further warning.

3. The occupiers of the property were evicted on 25 May. At some time between 25 May and 14 June, the locks, which had been changed by the agents of the bank at the time of the eviction, were found to have been again changed and the agents were unable to access to the property. Further investigation indicated that the occupiers, who had been evicted, and possibly the defendant herself who generally lived elsewhere, had re-entered the premises.

4. The plaintiff now seeks by a notice of motion dated 22 June 2018 for leave to issue a writ of restitution to restore to the plaintiff possession of the land in Manon Street. An affidavit in support of the notice of motion by Romina Rositano sworn 21 June 2018 sets out the history of the matter.

5. A number of judgments of this Court have held that what is known as a writ of restitution can be issued in particular circumstances, one of those circumstances being where a defendant has re-taken possession of premises after a writ of possession has been executed.

6. In Perpetual v Kelso [2008] NSWCA 906 at [19]-[26] Johnson J set out the legal principles surrounding the issue of a writ of restitution. Those principles have been followed in a number of cases including St George Bank v Udowenko and Ors [2010] NSWSC 1289 and Firstmac Fiduciary Services Pty Limited v Gilmour (No 2) [2013] NSWSC 416 at 10.

7. In Maher v Commonwealth Bank of Australia (No 2) [2004] FCA 1398 Finkelstein J in the Federal Court also discussed the circumstances where a writ of restitution might issue. He said at [6]:

[6] There were some cases, limited to the situation where the defendant had retaken possession within a short period, where the court would, upon application, issue a writ of restitution: Doe d Pitcher v Roe (1841) 9 Dowl 971; Alliance Building Society v Austen [1951] 2 All ER 1068; R v Elliott [1955] VR 126. However, where the plaintiff was forcibly taken out of possession by a stranger after a writ of possession had been fully executed, he could not obtain a writ of assistance but was required to bring a new action or bring proceedings for contempt: Fortune v Johnson (1651) Styles 318; Doe d Thompson v Mirehouse (1883) 2 Dowl 200. Bacon’s Abridgment, Ejectment (G) 3 explains that:

… after the possession given, either on the habere facias possessionem, or agreement of the parties, the law seems to make a difference where the plaintiff is turned out of possession by the defendant, and where by a stranger. When it is done by the defendant himself, the plaintiff may have either a new habere facias or an attachment, because the defendant himself shall never by his own act keep the possession which the plaintiff has recovered from him by due course of law. But, where a stranger turns the plaintiff out of possession after execution fully executed, the plaintiff is put to another action, or to an indictment for the forcible entry. For the title was never tried between the plaintiff and a stranger; and he may claim the land by title paramount to the plaintiff, or he may come in under him; and then the recovery and execution in the former action ought not to hinder the stranger from keeping that possession which he may have a right to. If the law were otherwise the plaintiff might by virtue of a new habere facias turn out even his own tenants, who came in after the execution executed; whereas the possession was given him only against the defendant in the action, and not against others not parties to the suit.

8. The question is whether the occupiers of the property, Semra Baskaya and Hlil Baskaya, should be regarded as strangers to the present proceedings.

9. When the defendant was served with the proceedings, she was asked by the process server if there were any other occupants over 18 years residing at the property. She indicated that Semra and Hlil Baskaya were such occupiers. On 18 August 2017 a Notice to Occupier was served at the premises by the statement of claim and the notice was left under the door of the premises. Further, after the writ of execution was issued by the Court, the solicitors for the plaintiff wrote to the occupiers at the property on 12 April 2018 enclosing a copy of a notice to vacate issued by the sheriff. The occupiers were Semra and Hlil Baskaya. When the writ was executed on 25 May 2018 it was those persons who were evicted from the premises.

10. In those circumstances, it does not appear to me that it can be said that the occupiers are strangers to the proceedings. They received notice on two occasions and did not apply, as the rules allowed, to be joined as defendants in the proceedings.

11. I consider in the circumstances that a writ of restitution should be issued.

12. The present application has been made by the bank ex parte. I consider that it was appropriate to deal with the matter on that basis, bearing in mind section 56 of the Civil Procedure Act 2005 (NSW).

13. To ensure, however, that the occupiers have one final opportunity to approach the Court if they wish to do so, I will stay the execution of the writ of restitution for a period of 14 days from today and I will direct the solicitors for the bank to notify the occupiers of the premises by no later than close of business on 26 June 2018 of the orders that I have made today and, in particular, that a writ of restitution is to be issued or has been issued.

14. Accordingly I grant leave to the plaintiff to issue a writ of restitution to restore to the plaintiff possession of the land comprised in folio identifier 14/16/1389 being the land situated and known as 8 Marion Street, also known as 8 Manon Street, Auburn, in the State of New South Wales.

15. I direct that the writ of restitution is not to be executed before 7 July 2018.

16. I direct that the plaintiff's solicitors are to notify the occupiers of the property by no later than 5:00pm, 26 June 2018 of the orders which have been made today. Such notification may be made in person or by mail.

17. I will grant the plaintiff, the defendant or the occupiers liberty to apply to my Associate on two days' notice.

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Decision last updated: 25 June 2018