Capital Access Pty Ltd v Charnwood Constructions Pty Ltd

[2022] NSWSC 1185

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Capital Access Pty Ltd v Charnwood Constructions Pty Ltd [2022] NSWSC 1185

Hearing dates:

26 August 2022

Date of orders:

26 August 2022

Decision date:

06 September 2022

Jurisdiction:

Common Law

Before:

Davies J

Decision:

Leave for the issue of a writ of restitution to restore to the Plaintiff possession of the land comprised in folio identifier 36/8011 of the Register known as 184 Carrington Avenue, Hurstville NSW 2220.

Catchwords:

JUDGMENTS AND ORDERS – enforcement – writs of restitution – when available - where writ of possession issued to plaintiff – plaintiff agreed to postpone execution of writ for six-week period to allow third defendant to refinance debt – no contact made with sheriff and writ executed – third defendant subsequently permitted to re-occupy the property – where third defendant did not repay debt by agreed date and did not deliver up possession of the property – whether plaintiff should be granted leave for issue of a writ of restitution – where third defendant did not trespass to regain possession – whether sufficient nexus between original recovery of possession and need to effect further recovery of same land – clear nexus – writ of restitution granted to plaintiff to recover the same possession

Legislation Cited:

Civil Procedure Act 2005 (NSW) ss 13, 56

Uniform Civil Procedure Rules 2005 (NSW) r 39.1

Cases Cited:

Abram v National Australia Bank Ltd (Unreported, 1 May 1997, NSWCA)

Alliance Building Society v Austin [1951] 2 All ER 1068 at 1070; 2 TLR 1231

Doe, on Demise of Pate v Roe (1807) 1 Taunt 55

Haniotis v Dimitriou [1983] VR 498

Lacon v de Groat (1894) 10 TLR 24; [1894] 1 WLUK 11

Maher v Commonwealth Bank of Australia & Ors (No 2) [2004] FCA 1398; (2004) 211 ALR 656

Perpetual Limited v Kelso [2008] NSWSC 906

Wilkshire County Council & Ors v Frazer (1985) 52 P&C R 46

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Capital Access Pty Ltd (Plaintiff)
Charnwood Constrictions Pty Ltd (First Defendant)
Ayman Elgammal (Second Defendant)
Ahmed Elgammal (Third Defendant)

Representation:

Counsel:
D Helvadjian (Plaintiff)
No appearances (First, Second and Third Defendants)

Solicitors:
Ronayne Owens Lawyers as agent for Ju Lee Seet of Capstone Koroneos Legal (Plaintiff)
Millennium Lawyers (First, Second and Third Defendants)

File Number(s):

2021/44134

Publication restriction:

Nil

Judgment

1. On 16 February 2021, the plaintiff commenced proceedings against the defendants seeking (inter alia) judgment for possession of the land known as 184 Carrington Avenue, Hurstville. The third defendant was the registered proprietor of the land and had given a mortgage over the land as security for a loan of $100,000.00, later increased to $150,000.00, to the first defendant. The second and third defendants were guarantors of the loan.

2. No defence was filed to the statement of claim. On 13 September 2021 default judgment was given for the plaintiff for possession of the land.

3. A writ of possession issued. The sheriff notified the third defendant that the occupants would be evicted on 13 January 2022 at 9am.

4. On 12 January 2022 the director of the plaintiff was contacted by the third defendant seeking an agreement from the plaintiff to delay execution of the writ for a period of four to six weeks. The director emailed the third defendant on that day agreeing to the postponement of the writ, and it is apparent that the purpose of the postponement was to enable the third defendant to refinance the debt.

5. Unfortunately, no contact was made with the sheriff and the writ of execution was executed. However, pursuant to the agreement the plaintiff had made with the third defendant, the third defendant was allowed to reoccupy the property pursuant to the terms in that agreement.

6. The plaintiff wrote again to the third defendant on 15 February 2022 saying:

As discussed, the execution of the warrant for possession on 13 January 2022 was postponed for six weeks to 24 February 2022 to allow you time to refinance your loan…

I understand that you have organised a loan from a friend for $120,000.00 this is clearly insufficient to pay out the our (sic) client’s loan especially since it has been in default since December 2020. If you are unable to refinance the loan by 24 February 2022, we are instructed to proceed with execution of the warrant for possession.

7. The third defendant did not repay the debt on 24 February 2022 or at all. Nor did he deliver up possession of the property.

8. In those circumstances, the plaintiff’s lawyers contacted the sheriff to ask him to reattend at the property to execute the writ. The sheriff said that, since the writ had been executed on 13 January 2022, it would be necessary for a writ of restitution to be obtained. Accordingly, the plaintiff by notice of motion filed 5  May 2022 sought leave for the issue of a writ of restitution in relation to the property.

9. Rule 39.1 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) relevantly provides:

39.1   Circumstances in which issue of writ requires leave

(cf SCR Part 44, rule 2)

(1)   A writ of execution may not be issued in the following circumstances except by leave of the court -

…

(d)   if the writ is a writ for the possession of land,

…

(g)   if the writ is in aid of another writ of execution.

10. A writ of restitution is a writ in aid of another writ of execution.

11. Under a delegation made pursuant to s 13 of the Civil Procedure Act 2005 (NSW) by the Chief Justice, the Registrar has power to grant the leave to which r 39.1 refers. Because the circumstances of the re-entry to possession by the third defendant were unusual, that is not by a forced retaking, the notice of motion was referred to me as the judge in charge of the Possession List. My associate gave notice to the parties, including to a solicitor who had as recently as 1 June 2022 filed a notice of appointment as solicitor for all three defendants.

12. The matter came before me on 26 August 2022 for the hearing of the notice of motion. There was no appearance on behalf of the defendants.

13. After hearing from Mr D Helvadjian of counsel for the plaintiff, I granted leave to the plaintiff to issue a writ of restitution to restore the plaintiff to possession of the land at 184 Carrington Avenue, Hurstville. I said that I would provide my reasons at a later date. These are my reasons for doing so.

14. A writ for the possession of land was known as a writ of habere facias possessionem. If such a writ was issued, executed and returned, but the occupier regained possession of the property, ordinarily by trespass, the occupier could not be put out by the issue of another writ of habere facias, called an alias. The reason for this was said to be that, if a further writ of the same type could be issued, a plaintiff might “retain the right of suing out a new habere facias possessionem, as a remedy for any trespass which the same [defendant] might commit with 20 years next after the date of the judgment”: Doe, on Demise of Pate v Roe (1807) 1 Taunt 55; Maher v Commonwealth Bank of Australia & Ors (No 2) [2004] FCA 1398; (2004) 211 ALR 656 at [5].

15. However, in the ordinary case where the defendant has retaken possession by trespass, a plaintiff may obtain a writ of restitution to restore the plaintiff to the premises: Perpetual Limited v Kelso [2008] NSWSC 906 at [19]-[21]

16. In the present case the third defendant did not trespass to regain possession of the property. However, the arrangement was made at the third defendant’s request to enable him to refinance the loan within the six-week period allowed. He has failed to do that.

17. In Abram v National Australia Bank Ltd (Unreported, 1 May 1997, NSWCA) Powell JA suggested that where there has been “a colourable delivery of possession and possession had been regained by fraud or some stratagem” either a writ of restitution was available or the occupier could be charged with contempt. That opinion appears to have been derived from what was said by Wills J in Lacon v de Groat (1894) 10 TLR 24; [1894] 1 WLUK 11, and the same reference appears in Alliance Building Society v Austin [1951] 2 All ER 1068 at 1070; 2 TLR 1231.

18. The evidence does not appear to go so far as to establish that the third defendant regained possession by fraud or stratagem. I could not conclude that, at the time the arrangement was made, he did not intend to attempt to refinance. Rather, it seems to me that in the circumstances of an agreement to delay his eviction by a six-week period, his remaining in the property beyond that period constitutes a trespass against the plaintiff: see the discussion in Haniotis vDimitriou [1983] VR 498 at 499-500.

19. In Wilkshire County Council & Ors v Frazer (1985) 52 P&C R 46, Simon Brown  J said (at p. 50):

The writ of restitution being in aid of execution, it would be appropriate to permit its issue only in those cases where there was a plain and sufficient nexus between the original recovery of possession and the need to effect further recover of the same land. Putting it another way, the court will be bound to ask itself: are the acts or episodes of trespass of which the owners complain during the overall period in question properly to be regarded as essentially one transaction?

20. In my opinion, the nexus in the present case is clear to see. The third defendant sought and obtained the right to go back into possession on the basis that a further writ would be executed six weeks thereafter if he had not repaid the debt. He is now a trespasser in the property. There is a clear nexus between the writ that was previously executed and any writ of restitution which will now be issued to recover the same possession.

21. Any suggestion that the plaintiff should obtain a fresh judgment for possession seems to me to be completely inconsistent with the provisions of s 56 of the Civil Procedure Act. The writ of possession in the present case was executed as a result only of an oversight by the plaintiff’s director in not notifying the sheriff a little over an hour earlier than he did. In my opinion, the plaintiff is entitled to issue a writ of restitution.

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Amendments

15 February 2023 - Typographical error on title page

Decision last updated: 15 February 2023