Firstmac Fiduciary Services Pty Limited v Gilmour

[2013] NSWSC 255

Supreme Court

New South Wales

Medium Neutral Citation:

Firstmac Fiduciary Services Pty Limited v. Gilmour [2013] NSWSC 255

Hearing dates:

07/03/2013

Decision date:

07 March 2013

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

1. Leave for the issue of a further writ of restitution.

2. The issue of a further writ of restitution to restore to the plaintiff possession of the land comprised in folio identifier 4XXXXX X being the whole of the land situated and known as lot XX in deposited plan XXXXX at XXXXX , Local Government Area XXXXX XX, Parish of XXXX, County of XXXXX , also known as XX XXX XXXXX New South Wales, forthwith.

3. An order pursuant to r 40.7 of the Uniform Civil Procedure Rules 2005 (NSW) that a sealed copy of the Court's judgment in these proceedings of 18 July 2012 be issued with the following endorsement:

"Brett Andrew Gilmour, you are served with a copy of this judgment and you are liable to imprisonment or to sequestration if you do not give possession of the land contained in folio identifier 4XXXXX X being the whole of the land situated and known as lot XX in deposited plan XXXXX at XXXXX , Local Government Area XXXXX XX, Parish of XXXX, County of XXXXX , also known as XX XXX XXXXX New South Wales (Property) to the plaintiff, or if you remain upon that Property, or if you re-enter that Property after possession has been delivered to the plaintiff."

4. An order pursuant to r. 40.7 of the Uniform Civil Procedure Rules 2005 (NSW) that service of the judgment so endorsed be effected by affixing a copy of the judgment to the property in the event that the defendant evades personal service within the next two days.

5. The defendant to pay the plaintiff's costs of and incidental to the notice of motion filed 27 February 2013.

6. These orders may be entered forthwith.

Catchwords:

PRACTICE AND PROCEDURE - judgments and orders - application for writ of restitution - application for order pursuant to r 40.7 Uniform Civil Procedure Rules 2005 (NSW) enabling enforcement of judgment by committal or sequestration - requirement of personal service - no question of principle.

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Spies v The Commonwealth Bank of Australia (1991) 24 NSWLR 691

Category:

Procedural and other rulings

Parties:

Firstmac Fiduciary Services Pty Limited (plaintiff)
Brett Andrew Gilmour (defendant)

Representation:

A. Vetrova (Plaintiff)
In person (Defendant)
Gadens Lawyers (Plaintiff)
In person (Defendant)

File Number(s):

2012/00033768

EX TEMPORE Judgment

1. HIS HONOUR: Firstmac Fiduciary Services Pty Limited has brought a notice of motion before the Court today seeking orders against Mr Brett Andrew Gilmour. Firstmac is the plaintiff and Mr Gilmour is the defendant in proceedings in the possession list in the Common Law Division of this Court. Firstmac is represented by Ms Vetrova, solicitor, and Mr Gilmour is self-represented.

1. The background to the application today is that Firstmac obtained judgment inter alia for possession of a property at XXXXX XX in the State of New South Wales. Firstmac was the mortgagee of that property and Mr Gilmour was the mortgagor.

1. The background circumstances are fully set out in previous judgments of judges of this Court, and I will not go over that ground. I will record however that Justice Johnson has summarised the background in two judgments given by him recently, on 11 February 2013 and on 25 February 2013.

1. On 11 February 2013 his Honour granted the plaintiff a writ of restitution to recover possession of Mr Gilmour's property from him. The short facts are that possession having been lawfully obtained by Firstmac pursuant to a writ for possession issued under the authority of this Court, Mr Gilmour unlawfully went back into possession of the property and denied thereby Firstmac's right to be mortgagee in possession.

1. The procedure invoked by Firstmac on 11 February 2013 was, as I have said, to seek the grant of a writ of restitution, which Justice Johnson granted. On the evidence before me that writ was executed by the Sheriff of New South Wales, by or one of his officers, on 15 February 2013. (See the report from the Sheriff at p 50 of the affidavit of Ms Vetrova sworn 27 February 2013 read before me today.)

1. It seems clear on the evidence and from what Mr Gilmour has said to me from the bar table, but more particularly from his letter dated 25 February 2013, that Mr Gilmour has once again gone into possession of the property in contravention of the lawful process instituted by orders of the Court.

1. Mr Gilmour in his address to me referred to that document as a letter. It is perhaps slightly more accurate to call it the print out of an email. It is found at pp 46 and 47 of Ms Vetrova's affidavit. The print out of the email says in part as follows:

No supervised access is required as I have repossessed my land.

From the document attached to the email it is clear that Mr Gilmour purports to assert his legal title and states:

I wish to advise I have restored my rightful and legal possession

of my property as of 1 pm on the 15th day of February 2013.

1. I understand from what he has said to me that he remains in possession of the property.

1. Mr Gilmour has informed me that he is contemplating instituting proceedings in the Court of Appeal but those proceedings have not yet been commenced. He has also informed me that in his view the orders in favour of the plaintiff have been obtained by fraud, but he is not in a position today to put any evidence before me to make good that serious allegation, although I have given him, in the usual way, the opportunity of leading evidence in response to the plaintiff's motion.

1. I observe in any event that the proper procedure for challenging a judgment of the Court on the ground of fraud is to commence separate proceedings in the Court by way of statement of claim: and no such step has been taken (See decision of the Court of Appeal in Spies v The Commonwealth Bank of Australia (1991) 24 NSWLR 691).

1. In these circumstances it is proper for me to deal with the plaintiff's motion today. The plaintiff seeks leave to issue a further writ of restitution to restore the plaintiff to possession of the land at XXXXX XXX to which I have referred. Additionally the plaintiff seeks an order pursuant to r. 40.7 Uniform Civil Procedure Rules2005 (NSW) that a sealed copy of the Court's judgment of 18 July 2012 be issued with the following endorsement:

Brett Andrew Gilmour, you are served with a copy of this judgment and you are liable to imprisonment or to sequestration if you do not give possession of the land contained in folio identifier 4XXXXX X being the whole of the land situated and known as lot XX in deposited plan XXXXX at XXXXX , Local Government Area XXXXX XX, Parish of XXXX, County of XXXXX , also known as XX XXX XXXXX New South Wales (Property) to the plaintiff, or if you remain upon that Property, or if you re-enter that Property after possession has been delivered to the plaintiff

1. The plaintiff Firstmac also seeks an order that service of that judgment be effected by affixing a sealed copy of the judgment to the property.

1. I should make clear that the purpose of that relief is to enable the plaintiff to enforce the judgment in its favour by committal or sequestration. That is to say, Firstmac, given the history of the matter, wishes to leave open to it the option of applying to this Court that the Court's order, if necessary, be enforced by dealing with Mr Gilmour for contempt of court.

1. That step would only be necessary if, should I accede to the application that a further writ of restitution be issued, Mr Gilmour once again goes into possession after possession is re-delivered to the plaintiff by execution by the Sheriff of the Court's order.

1. In my judgment the plaintiff is entitled in the circumstances to the issue of a further writ of restitution, and I will make that order in due course. It also seems to me that it is proper in the circumstances of the present case for the plaintiff to invoke r. 40.7.

1. As Mr Gilmour reminded me in his submissions, our community of the State of New South Wales is governed by the rule of law. No person, whatever their station, whatever official role they occupy, whatever their circumstances of life, is above the law. All are bound by it equally. Judges are bound by it, as are litigants.

1. The orders of the Supreme Court of New South Wales, and of any court exercising lawful jurisdiction in New South Wales, form part of the fabric of our law. The orders of the Court are part of the law by which all of us are bound; the orders of the Court form part, an important part, of what we regard as the rule of law in our free and democratic society in Australia.

1. It needs to be pointed out, I think, that Mr Gilmour, equally with the rest of us, is bound by the rule of law and bound by the judgments and orders of this Court. To vindicate the primacy of the rule of law in our society I also think it appropriate that the Court accede to the plaintiff's application and make the order sought in prayer 3 of the notice of motion which I am dealing with today.

1. I note that r. 40.7 provides for personal service. However, there can be no doubt that Mr Gilmour is aware of the judgment of the Court and is aware of the application made by the plaintiff in regard to r 40.7. In addressing me this morning he referred in general terms to the threat of imprisonment which may be implicit in any step taken by the plaintiff to enforce its judgment by committal.

1. Moreover, Mr Gilmour has been in Court on three occasions since January. On the first occasion he appeared before Justice Hall seeking a stay of the writ of possession. He was obviously aware of it. He also appeared before Justice Johnson on each occasion that his Honour has dealt with the matter, being 11 February 2013 and 15 February 2013. He is present in Court today and has represented himself when the plaintiff's application has been dealt with.

1. There can be no question that he is well aware of the judgment, was well aware of the writ of possession, and was well aware of the writ of restitution that was subsequently granted. He is also aware that Justice Johnson refused to stay that writ on 15 February 2013.

1. The email of 25 February 2013, as I have referred to already, makes it abundantly clear that Mr Gilmour is aware that his possession and occupation of the property is in contravention of orders made by this Court.

1. In these circumstances I think it appropriate to accede to prayer 4, that if personal service cannot be effected that service may be effected by affixing a copy of the endorsed judgment to the entrance gate to the property, or some other convenient place at the entry of the property.

1. For these reasons I make the following orders:

(1)   Leave for the issue of a further writ of restitution.

(2)   The issue of a further writ of restitution to restore to the plaintiff possession of the land comprised in folio identifier 4XXXXX X being the whole of the land situated and known as lot XX in deposited plan XXXXX at XXXXX , Local Government Area XXXXX XX, Parish of XXXX, County of XXXXX , also known as XX XXX XXXXX New South Wales, forthwith.

(3) An order pursuant to r 40.7 of the Uniform Civil Procedure Rules 2005 (NSW) that a sealed copy of the Court's judgment in these proceedings of 18 July 2012 be issued with the following endorsement:

"Brett Andrew Gilmour, you are served with a copy of this judgment and you are liable to imprisonment or to sequestration if you do not give possession of the land contained in folio identifier 4XXXXX X being the whole of the land situated and known as lot XX in deposited plan XXXXX at XXXXX , Local Government Area XXXXX XX, Parish of XXXX, County of XXXXX , also known as XX XXX XXXXX New South Wales (Property) to the plaintiff, or if you remain upon that Property, or if you re-enter that Property after possession has been delivered to the plaintiff."

(4)   An order pursuant to r. 40.7 of the Uniform Civil Procedure Rules 2005 (NSW) that service of the judgment so endorsed be effected by affixing a copy of the judgment to the property in the event that the defendant evades personal service within the next two days.

(5)   The defendant to pay the plaintiff's costs of and incidental to the notice of motion filed 27 February 2013.

(6)   These orders may be entered forthwith.

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Decision last updated: 27 March 2013