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

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.
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.
A writ of possession issued. The sheriff notified the third defendant that…

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: [2022] NSWSC 1185
Decision Date: 06 September 2022

CaseChat Overview and Summary

Capital Access Pty Ltd sought leave to issue writs of restitution against Charnwood Constructions Pty Ltd, the original defendant, and a third party, in the Federal Court of Australia. The original dispute involved a writ of possession issued to Capital Access following a default in payment under a finance agreement. To accommodate a third party's attempt to refinance the debt, Capital Access postponed the execution of the writ for six weeks. Despite this agreement, when the writ was executed, the third party was allowed to re-occupy the property but failed to repay the debt or deliver up possession by the agreed date. Capital Access sought leave to issue writs of restitution to recover possession of the property from both Charnwood Constructions and the third party.

The court had to determine whether Capital Access should be granted leave to issue writs of restitution given the circumstances. It needed to consider whether there was a sufficient nexus between the original recovery of possession and the need to effect further recovery of the same land. The court also needed to decide if the third party's failure to repay the debt or deliver up possession constituted a sufficient basis for the issuance of a writ of restitution, despite the third party not trespassing to regain possession.

The court found that there was a clear nexus between the original recovery of possession and the need to effect further recovery of the same land. Given that the third party had failed to repay the debt or deliver up possession by the agreed date, the court concluded that Capital Access should be granted leave to issue writs of restitution. This decision was based on the established precedent that a writ of restitution is appropriate where there is a clear nexus between the original recovery of possession and the need to effect further recovery of the same land, and where the party in possession does not trespass to regain possession. Consequently, the court granted Capital Access leave to issue a writ of restitution to recover possession of the property from both Charnwood Constructions and the third party.

Orders