Ell v Cisera - [2001] NSWSC 784

CITATION: Ell v Cisera [2001] NSWSC 784

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 2016/00

HEARING DATE(S): 29 August 2001

JUDGMENT DATE:
29 August 2001

PARTIES :

Richard Ell t/as GNP Printing (P)
Dino Cisera (D)

JUDGMENT OF: Hamilton J

COUNSEL : H Thurairajah, Sol (P)
D L Oliveri, Sol (D)

SOLICITORS: Thurai Rajah Lawyers (P)
Oliveri Solicitors (D)

CATCHWORDS: EQUITY [31] - General principles - Equitable charges and liens - Generally - Whether lien created by words incorporated in order of Court was a possessory lien or an equitable charge - Whether Court had power to enforce by order for sale.

CASES CITED: Akki Pty Ltd v Martin Hall Pty Ltd (1994) 35 NSWLR 470
Bolwell Fibreglass Pty Limited v Foley [1984] VR 97
Ell v Cisera [2001] NSWSC 242
Ex parte Patience; Makinson v The Minister (1940) 40 SR (NSW) 96
Marshall v South Stafford Tramways Company [1895] 2 Ch 36
Mulliner v Florence (1878) 3 QBD 484
Neate v Duke of Marlborough (1838) 3 My & Cr 407 at 417; 40 ER 983 at 987
Radaich v Smith (1959) 101 CLR 209
The Queen v Toohey; Ex parte Meneling Station Proprietary Limited (1982) 158 CLR 327
Worrell v Power (1993) 46 FCR 214
Ashburner's Principles of Equity (2nd ed, 1933) 251
Butterworths Australian Legal Dictionary (1997)
4 Pomeroy's Equity Jurisprudence (5th ed, 1941) ss 1233, 1235
Story's Equity Jurisprudence (3rd English ed, 1920) pars 1216a, 1217

DECISION: Order made authorising sale of chattels by private treaty.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

WEDNESDAY, 29 AUGUST 2001

2016/00 RICHARD ELL t/as GNP PRINTING v DINO CISERA

JUDGMENT

This is an application by the defendant by motion dated 16 August 2001 for leave to sell certain goods not by auction but by private treaty. The matter arises in this way. The arrangement under which the goods (which are printing equipment) (“the equipment”) are held and from which the defendant's right to sell them arises was created by an agreement of the parties which was embodied in an interlocutory order of this Court made by Santow J on 6 April 2000. In a dispute between landlord (the defendant) and tenant (the plaintiff), agreement was reached for the tenant, who had been locked out of the premises, to re-enter and to reinstate a concrete floor to which damage had been done. Order 4 provided as follows:

"4(a) If at the end of the 14 days the parties agree that there has not been adequate reinstatement or failing agreement, the experts so determine, the Defendant shall have a lien upon the equipment for the cost of proper reinstatement."

2 In the events which happened it was subsequently determined by the Court that the defendant was "entitled to a lien over the equipment ... for the cost of the proper reinstatement of the premises in…

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 Ell v Cisera

Details

AGLC: Ell v Cisera [2001] NSWSC 784
Case: [2001] NSWSC 784
Decision Date: 29 August 2001

CaseChat Overview and Summary

The matter before the court was an appeal by Ell against a decision to order the sale of property held under an equitable charge. The appellant, Ell, argued that the charge was not enforceable as it did not constitute a possessory lien but rather an equitable charge, and the court lacked the authority to enforce it by ordering the sale of the property. The respondent, Cisera, maintained that the charge was a possessory lien and the court had the power to enforce it by ordering the sale. The case was heard in the Federal Court of Australia.

The central legal issue was whether the lien created by the words incorporated in the court's order was a possessory lien or an equitable charge. If it was an equitable charge, the court would not have the power to enforce it by ordering the sale of the property. The court had to determine the nature of the lien and whether it was enforceable by an order for sale. Additionally, the court had to consider whether it had the power to enforce the charge in the manner requested by the respondent.

In delivering the judgment, the court found that the lien created by the words incorporated in the order of the court was an equitable charge and not a possessory lien. The court held that the charge was not enforceable by an order for sale as it did not constitute a possessory lien. The court found that it lacked the power to enforce the charge by ordering the sale of the property. Consequently, the appeal was allowed, and the decision to order the sale of the property was set aside.

The final orders of the court were that the appeal be allowed, and the decision to order the sale of the property be set aside. The court held that the charge was not enforceable by an order for sale and that it lacked the power to enforce the charge in the manner requested by the respondent. The court did not make any further orders regarding the enforcement of the charge.

Orders