Ip v Chiang

[2021] NSWSC 1702

Supreme Court

New South Wales

Medium Neutral Citation:

Ip v Chiang [2021] NSWSC 1702

Hearing dates:

23 December 2021

Date of orders:

23 December 2021

Decision date:

23 December 2021

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Defendant’s notice of motion filed 17 December 2021 dismissed.

2. No order as to costs.

Catchwords:

LAND LAW – possession of land – writ of possession – stay sought pending hearing of appeal – where no notice of appeal filed – where time for filing had expired - application dismissed

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW) rr 51.9, 51.44

Cases Cited:

Ip v Chiang [2021] NSWSC 822l

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Xiao Feng Ip (Plaintiff)
Lisa Tsui Peng Chiang (Defendant)

Representation:

Counsel:
P Gengos (Plaintiff)
In person (Defendant)

Solicitors:
Philip Gengos & Co (Plaintiff)
Self-represented (Defendant)

File Number(s):

2018/312250

Publication restriction:

Nil

Judgment

1. After a lengthy hearing in November 2020, Lindsay J gave judgment in favour of the present plaintiff: Ip v Chiang [2021] NSWSC 822. Included in the judgment were three orders for possession of three properties, being 315/243 to 271 Pyrmont Street, Pyrmont, and two garage spaces at 152 and 153/360 Harris Street, Pyrmont. His Honour's final orders were entered on 4 August 2021. In respect of the Pyrmont Street property, which appears to be the defendant's residence at the present time, his Honour ordered that a writ of possession should be issued but no earlier than 60 days after the date of the orders. A writ of possession subsequently issued and is due to be executed of 14 January 2022.

2. By a notice of motion dated 17 December 2021, the defendant, now acting for herself, seeks an order that the notice to vacate given by the sheriff “be suspended until the … Court of Appeal made final decision”.

3. It appears that the defendant filed a notice of intention to appeal on 27 August 2021, and I take the order sought in the notice of motion to mean that there should be a stay of execution of the writ until the Court of Appeal has determined the defendant's appeal.

4. The difficulty for the defendant is that although the notice of intention to appeal was filed within time, no notice of appeal has been filed within the three-month period required by rule 51.9 of the Uniform Civil Procedure Rules 2005 (NSW). That has two results.

5. First, there is no appeal in respect of which the stay is sought. Secondly, in any event, I have no idea on what basis the defendant will seek to challenge the judgment of Lindsay J. Certainly, the defendant does not accept the findings that his Honour made. So much appears in her affidavit, sworn in support of the notice of motion, and in submissions which have been made from the bar table by the defendant through an interpreter.

6. I endeavoured to focus the defendant's mind on the need for the filing of the notice of appeal within the three month period. Her answers to that were that she understood that she would be hearing from the Court, who would advise her about money to be paid for the lodging of an appeal. Secondly, she argued that, in a number of respects, findings made by Lindsay J about the deceased, her relationship with the deceased, and the relationship between the plaintiff and the deceased were wrong.

7. Any understanding that the defendant would be contacted by the Court was misconceived. There was no evidence put forward to justify such an understanding. The defendant, even if acting for herself, is obliged to file a notice of appeal in the time prescribed by the rules.

8. The defendant may have a view that findings in the judgment are wrong, but she would need to identify errors in that regard in grounds of appeal. A perusal of the judgment of Lindsay J discloses that many of the findings made depended on his Honour’s opinion of the honesty and reliability of the defendant. That makes the proper framing of appeal grounds more significant, where it is argued (as it apparently is) that the appeal is likely to be upheld.

9. Rule 51.44 provides in any event that the lodgement of a notice of appeal does not operate as a stay on the judgment. Whilst it is not necessary to show special or exceptional circumstances to obtain a stay, some proper basis needs to be put forward even if a notice of appeal had been filed within the time specified in the rules.

10. There is no appeal on foot and, accordingly, no basis at all is shown for a stay of the writ of execution. In those circumstances the notice of motion should be dismissed. I note that costs are not sought by the plaintiff.

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Decision last updated: 23 December 2021