Halim v Duncan
[2016] NSWSC 413
•05 April 2016
Supreme Court
New South Wales
Medium Neutral Citation: Halim v Duncan [2016] NSWSC 413 Hearing dates: 5 April 2016 Date of orders: 05 April 2016 Decision date: 05 April 2016 Jurisdiction: Equity - Duty List Before: Kunc J Decision: Temporary stay granted
Catchwords: REAL PROPERTY – Ejectment – Execution – Stay of writ for possession – No issue of principle Category: Procedural and other rulings Parties: Hua Halim (Plaintiff)
Ian Bruce Duncan (First Defendant)Representation: Solicitors:
A. Lim (Trustee)
I.B. Duncan (First Defendant) – in person
File Number(s): 2014/345698 Publication restriction: No
EX TEMPORE Judgment
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The first defendant, Mr Duncan, applies for a stay of a writ for possession of a property at which he resides.
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In the circumstances of a busy duty list I have had some difficulty ascertaining the full history of this matter. However, I have found a transcript of a directions hearing in family provision proceedings before Hallen J on 2 February 2016. It is in those proceedings that the writ for possession was ordered.
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At the directions hearing on 2 February 2016 I note that Hallen J is recorded as saying (transcript page 4):
Mr Duncan, you don't have a residence, you are a co-owner, as I understand it, of the property. You have consented to an order for possession as long ago as October 2015 and that order extending the time for you to vacate possession was made on 18 October with your consent, giving you until 31 January. You haven't vacated, so steps are now going to be taken to have you forcibly removed from the premises.
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Mr Duncan has confirmed to me today that what his Honour is recorded as saying is correct. Mr Duncan accepts he consented to an order for possession as long ago as October 2015, and to an order extending the time for execution up to 31 January 2015.
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Mr Duncan's evidence relied upon today discloses that he received a notice from the Sheriff which required him to vacate the premises on or before Wednesday, 30 March 2016, failing which action would be taken to evict him without further warning. On the basis of that letter, Mr Duncan approached a Deputy Registrar of this Court, who made an order on 29 March 2016 staying the writ of possession up to and including 5pm today.
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The Deputy Registrar's order also required the matter to be listed today in the Possession List and for a copy of the order, together with Mr Duncan's notice of motion and supporting affidavit, to be served on the plaintiff's solicitor.
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Mr Duncan informs me that this morning the matter was not listed in the Possession List but rather before the Equity Registrar, who referred the matter to me.
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It appears that the Deputy Registrar was acting under a misapprehension in so far as the order made by the Deputy Registrar lists the proceedings as being in Common Law and in the Possession List. That is not the case.
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Furthermore, the order refers to the plaintiff in the proceedings as being Mr McAuley, who I am informed by Mr McAuley's solicitor is the trustee for sale of the property. The plaintiff in these proceedings is in fact Hua Halim. In accordance with the orders made on 29 March 2016 Mr Duncan served the material on Mr McAuley himself. It would appear that the plaintiff, Hua Halim, has no notice of the matter being before the Court today.
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Be all that as it may, the Deputy Registrar’s stay of the writ expires at 5pm today. Mr Duncan has informed the Court that he intends to vacate the premises in accordance with the order, subject to one matter to which I will refer, but that he has not completed removing his and his late father's possessions from the premises. He says he requires another four weeks to do so.
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The solicitor for the trustee has informed the Court that the trustee neither consents to nor opposes Mr Duncan's application. I have received an affidavit from Mr McAuley indicating that the property has not yet been placed on the market. Mr McAuley's affidavit is to the effect that he has written to four local real estate agents in relation to the sale of the property but has been told that they require access to the property so that they can appraise it. There is nothing before me to suggest that Mr Duncan has prevented or will prevent any real estate agent gaining access to the property for the purposes of appraisal in the meantime.
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The family provision proceedings are next before the Family Provision List judge on 21 April.
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The appropriate course is to accede to Mr Duncan's request to stay the writ for possession for a further four weeks to enable him to conclude packing up the premises and to put himself in a position to vacate.
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He has also indicated that during that four week period he wishes the opportunity to consult with his solicitor about the circumstances in which he (Mr Duncan) consented to the original order for a writ for possession. That is entirely a matter for Mr Duncan and he may take whatever course he wishes in relation to that aspect of the matter.
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I have it in mind, also, that Mr Duncan should, when the matter is next before the Family Provision List judge on 21 April, report to that judge as to progress in vacating the property. What, if anything, is done about that on the next occasion is, of course, a matter for that judge.
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The orders of the Court are:
Stay the execution of the writ of possession issued on 3 February 2016 up to and including 3 May 2016.
Direct the first defendant, when the matter is next before the Family Provision List judge on 21 April 2016, to provide that judge with a report in writing on that occasion as to the first defendant's progress in completing the task of clearing out the property in anticipation of the first defendant vacating it.
Otherwise dismiss the first defendant's notice of motion filed 29 March 2016.
Direct these orders be taken out forthwith.
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The Court notes that the trustee makes no application in relation to the costs of today.
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Decision last updated: 13 April 2016
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