Battle v Bundagen Co-operative Ltd - [2010] NSWCA 251

New South Wales

Court of Appeal

CITATION: BATTLE v BUNDAGEN CO-OPERATIVE LTD [2010] NSWCA 251

HEARING DATE(S): 27 September 2010

JUDGMENT DATE:
28 September 2010

JUDGMENT OF: Basten JA at 1

DECISION: (1) Subject to compliance with the conditions set out in (2) below, execution of the writ of possession issued pursuant to leave granted on 5 March 2010 be stayed until the determination of the proceedings in this Court.
(2) The stay is conditional upon the applicant (Christopher Battle):
(a) not assaulting, harassing, threatening, molesting, intimidating or otherwise interfering with members of the Co-operative, people living on the land of the Co-operative, or visitors on the land of the Co-operative;
(b) not approaching, contacting or communicating with any member of the Co-operative, any person living on the land of the Co-operative or any visitor on the land of the Co-operative who had indicated to the applicant that they do not wish him to approach, contact or communicate with them;
(c) not approaching, contacting or communicating with any member of the “Outback Village” or Roger Horton;
(d) communicating with the Co-operative co-ordinators and directors of the Co-operative only through the legal representatives of the Co-operative, and
(e) not using or interfering with equipment owned by the Co-operative.
(3) Order that the concurrent hearing of the application for leave to appeal and the appeal be fixed for hearing at a date as soon as possible, without requiring the vacation of the date of any other matter already fixed for hearing.
(4) Order that the costs of the motion be the applicant’s costs in the appeal.

CATCHWORDS: APPEAL – civil – stay of orders made at trial – stay of execution of writ of possession - PROCEDURE – stay of execution of writ of possession – writ issues against occupant of land as licensee of Co-operative

LEGISLATION CITED: Supreme Court Act 1970 (NSW), s 75A

CATEGORY: Procedural and other rulings

CASES CITED: Andrews v John Fairfax & Sons Ltd [1979] 2 NSWLR 184
McCrachett v Shamballa Co-operative Ltd (unrep, NSWCA, 10 December 2001)

PARTIES: Christopher Battle – Applicant
Bundagen Co-operative Ltd - Respondent

FILE NUMBER(S): CA 2009/293060

COUNSEL: D Petrushnko - Applicant
P Singleton - Respondent

SOLICITORS: Applicant Self-represented
Carty & Cox Solicitors - Respondent

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 2009/293060

LOWER COURT JUDICIAL OFFICER: Latham J

LOWER COURT DATE OF DECISION: 5 March 2010

LOWER COURT MEDIUM NEUTRAL CITATION: Bundagen Co-Operative v Battle [2010] NSWSC 160

CA 2009/293060

BASTEN JA
28 September 2010

Christopher BATTLE v BUNDAGEN CO-OPERATIVE LTD

Judgment

1 BASTEN JA: From 1989 to July 2007, the applicant, Mr Christopher Battle, was a resident at the “Outback Village”. He occupied premises constructed on land owned by Bundagen Co-operative Ltd, pursuant to his entitlement as a member of the Co-operative. I am advised by counsel, although no evidence to this effect is before me, that his entitlement constituted a licence to occupy specified premises, pursuant to the rules or other constitutive document of the…

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.

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Details

Case: [2010] NSWCA 251
Decision Date: 28 September 2010

CaseChat Overview and Summary

The proceedings before the Court of Appeal concerned an application by Christopher Battle for a stay of execution of a writ of possession issued against him by Bundagen Co-operative Ltd. The writ of possession was granted following a decision at trial that found Mr Battle to be a licensee of the Co-operative and ordered his removal from the land.

The primary legal issue before the Court of Appeal was whether to grant a stay of execution of the writ of possession pending the determination of Mr Battle's appeal. This involved considering the conditions under which a stay of execution would be appropriate in circumstances where a party sought to appeal an order for possession.

Basten JA considered the application for a stay and, subject to certain conditions, granted the stay of execution of the writ of possession until the determination of the appeal. The conditions imposed on Mr Battle were designed to ensure the safety and well-being of members of the Co-operative and others on the land, and to regulate his communication with the Co-operative and its members. These conditions included prohibitions against assaulting, harassing, threatening, molesting, intimidating, or otherwise interfering with individuals, and restrictions on approaching, contacting, or communicating with specific individuals or groups. Furthermore, Mr Battle was required to communicate with the Co-operative only through its legal representatives and was prohibited from using or interfering with the Co-operative's equipment. The Court also expedited the hearing of the appeal.

Orders

Orders of the court

(1) Subject to compliance with the conditions set out in (2) below, execution of the writ of possession issued pursuant to leave granted on 5 March 2010 be stayed until the determination of the proceedings in this Court.

(2) The stay is conditional upon the applicant (Christopher Battle):

(a) not assaulting, harassing, threatening, molesting, intimidating or otherwise interfering with members of the Co-operative, people living on the land of the Co-operative, or visitors on the land of the Co-operative;

(b) not approaching, contacting or communicating with any member of the Co-operative, any person living on the land of the Co-operative or any visitor on the land of the Co-operative who had indicated to the applicant that they do not wish him to approach, contact or communicate with them;

(d) communicating with the Co-operative co-ordinators and directors of the Co-operative only through the legal representatives of the Co-operative, and

(e) not using or interfering with equipment owned by the Co-operative.

(3) Order that the concurrent hearing of the application for leave to appeal and the appeal be fixed for hearing at a date as soon as possible, without requiring the vacation of the date of any other matter already fixed for hearing.

(4) Order that the costs of the motion be the applicant’s costs in the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	BATTLE v BUNDAGEN CO-OPERATIVE LTD [2010] NSWCA 251
HEARING DATE(S):	27 September 2010
JUDGMENT DATE:	28 September 2010
JUDGMENT OF:	Basten JA at 1
DECISION:	(1) Subject to compliance with the conditions set out in (2) below, execution of the writ of possession issued pursuant to leave granted on 5 March 2010 be stayed until the determination of the proceedings in this Court. (2) The stay is conditional upon the applicant (Christopher Battle): (a) not assaulting, harassing, threatening, molesting, intimidating or otherwise interfering with members of the Co-operative, people living on the land of the Co-operative, or visitors on the land of the Co-operative; (b) not approaching, contacting or communicating with any member of the Co-operative, any person living on the land of the Co-operative or any visitor on the land of the Co-operative who had indicated to the applicant that they do not wish him to approach, contact or communicate with them; (c) not approaching, contacting or communicating with any member of the “Outback Village” or Roger Horton; (d) communicating with the Co-operative co-ordinators and directors of the Co-operative only through the legal representatives of the Co-operative, and (e) not using or interfering with equipment owned by the Co-operative. (3) Order that the concurrent hearing of the application for leave to appeal and the appeal be fixed for hearing at a date as soon as possible, without requiring the vacation of the date of any other matter already fixed for hearing. (4) Order that the costs of the motion be the applicant’s costs in the appeal.
CATCHWORDS:	APPEAL – civil – stay of orders made at trial – stay of execution of writ of possession - PROCEDURE – stay of execution of writ of possession – writ issues against occupant of land as licensee of Co-operative
LEGISLATION CITED:	Supreme Court Act 1970 (NSW), s 75A
CATEGORY:	Procedural and other rulings
CASES CITED:	Andrews v John Fairfax & Sons Ltd [1979] 2 NSWLR 184 McCrachett v Shamballa Co-operative Ltd (unrep, NSWCA, 10 December 2001)
PARTIES:	Christopher Battle – Applicant Bundagen Co-operative Ltd - Respondent
FILE NUMBER(S):	CA 2009/293060
COUNSEL:	D Petrushnko - Applicant P Singleton - Respondent
SOLICITORS:	Applicant Self-represented Carty & Cox Solicitors - Respondent
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 2009/293060
LOWER COURT JUDICIAL OFFICER:	Latham J
LOWER COURT DATE OF DECISION:	5 March 2010
LOWER COURT MEDIUM NEUTRAL CITATION:	Bundagen Co-Operative v Battle [2010] NSWSC 160