Khanna v Sabi Foods International (Aust) Pty Limited

[2017] NSWSC 1269

Supreme Court

New South Wales

Medium Neutral Citation:	Khanna v Sabi Foods International (Aust) Pty Limited and Anor [2017] NSWSC 1269
Hearing dates:	On the papers
Date of orders:	22 September 2017
Decision date:	22 September 2017
Jurisdiction:	Common Law
Before:	Johnson J
Decision:	Further orders made as contained in paragraph [14]
Catchwords:	PRACTICE AND PROCEDURE - application by judgment creditors for order under s.135 Civil Procedure Act 2005 for Sheriff to enter property of judgment debtor to take possession of goods under writ for levy of property - Court makes s.135 order - judgment creditors seek additional orders to enable Sheriff to enforce order - further orders made
Legislation Cited:	Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005
Cases Cited:	Khanna v Sabi Foods International (Aust) Pty Limited and Anor [2017] NSWSC 573
Texts Cited:	---
Category:	Principal judgment
Parties:	Sabi Foods International (Aust) Pty Limited (First Applicant) Uvaraja Hariramakrishnan (Second Applicant) Sanjeev Khanna (Respondent)
Representation:	Solicitors: Ms ID Leighton, Curwoods Legal Services Pty Ltd (Applicants) Mr S Khanna (Respondent - Self-Represented)
File Number(s):	2015/112053
Publication restriction:	---

Judgment

1. JOHNSON J: On 8 May 2017, I heard and determined (as Duty Judge) a Notice of Motion brought by the Applicants, Sabi Foods International (Aust) Pty Limited and Uvaraja Hariramakrishnan, seeking an order under s.135 Civil Procedure Act 2005 authorising the Sheriff to enter the premises of the Respondent, Sanjeev Khanna, for the purpose of taking possession of goods under a writ for levy of property: Khanna v Sabi Foods International (Aust) Pty Limited and Anor [2017] NSWSC 573.

2. The background to that application and my reasons for making orders were contained in my judgment of 8 May 2017.

3. It is sufficient to note that a writ for levy of property was issued following application made by the Applicants on 8 December 2016. On 16 December 2016, the Sheriff attempted, unsuccessfully, to execute the writ at the Respondent’s premises at 1 Hambro Avenue, Glenwood (“the Glenwood premises”). The Respondent was present at the Glenwood premises on that day but, according to the Sheriff’s report, he refused entry to the Sheriff’s Officer and compelled the Officer to leave the Glenwood property. On 8 May 2017, I expressed my satisfaction that the requirements of Rule 39.52 Uniform Civil Procedure Rules 2005 had been established so as to justify the making of an order under s.135 Civil Procedure Act 2005.

4. The orders made on 8 May 2017 were as follows:

“(a) Pursuant to s.135 Civil Procedure Act 2005, I make an order authorising the Sheriff of New South Wales to enter the premises of the judgment debtor, Sanjeev Khanna, at 1 Hambro Avenue, Glenwood, for the purpose of taking possession of goods under the writ of execution.

(b)   I order that the Respondent pay the Applicants' costs of the present Notice of Motion including costs of the hearing today, but that order does not include the costs of 1 May 2017, as to which I make no order as to costs.”

5. The s.135 order was made in the terms sought by the Applicants in their Notice of Motion dated 20 April 2017.

6. On 4 September 2017, the solicitor for the Applicants, contacted my Associate for the purpose of seeking additional orders to permit the order made on 8 May 2017 to be put into effect. I made orders in Chambers directing the Applicants to furnish a written submission in support of that application. The Respondent was permitted an opportunity to respond to the application by 18 September 2017 by way of a written submission.

7. The Applicants’ submission revealed that following communications between the solicitors for the Applicants and the Sheriff, more detailed orders were needed to allow the Sheriff to execute the order made on 8 May 2017.

8. The Applicants seek additional orders along the following lines to permit the Sheriff to execute the original s.135 order:

“1.   That the Court make orders authorising the Sheriffs Officers at Blacktown to enter premises located at 1 Hambro Avenue, Glenwood NSW 2768 for the purpose of seizing and taking possession of goods under a writ for levy of property. The Sheriffs Officer may enter the premises and use such force as is reasonably necessary to do so.

2.   That the Court make orders authorising the Sheriffs Officers at Blacktown to re-enter the premises located at 1 Hambro Avenue, Glenwood NSW 2768 to remove any seized items that were unable to be removed during the initial seizure, or to re-enter the premises located at 1 Hambro Avenue, Glenwood NSW 2768 to sell the seized items on site.

3.   That the Sheriffs Officer may request that any member of the police force assist the Sheriffs Officer to enforce the order for entry.”

9. The submission of the Applicants, and the associated documentation provided with the submission, demonstrates a proper basis for the Court to expand the terms of its order so as to allow the s.135 order made on 8 May 2017 to be implemented on behalf of the Applicants. If the original Notice of Motion had contained a claim for orders of the type now sought, the Court would have made those orders as well on 8 May 2017.

10. The nature of the present application is procedural. It does not alter the substance of the application made to the Court on 8 May 2017 nor the relief which the Court determined to grant on that day. The additional orders sought are consequential procedural steps which I am satisfied are necessary to implement the Court’s order.

11. The submission and accompanying material furnished by the Respondent to the Court on 18 and 19 September 2017 appears to re-agitate some of the matters determined by the Court on 8 May 2017. The Respondent’s submission does not contain any arguable foundation for the Court to decline to make the further procedural orders sought by the Applicants.

12. With some modification of language, I propose to make orders along the lines of those sought by the Applicants.

13. The Court notes the orders made on 8 May 2017 under s.135 Civil Procedure Act 2005 and as to costs.

14. In addition to the orders made on 8 May 2017, the Court makes the following further orders:

1. Officers of the Sheriff are authorised to enter the premises of the Respondent, Sanjeev Khanna, at 1 Hambro Avenue, Glenwood NSW 2768 (“the Glenwood premises”) for the purpose of seizing and taking possession of goods under the writ for levy of property;

2. in executing the order of the Court, Officers of the Sheriff may enter the Glenwood premises and use such force as is reasonably necessary to do so;

3. Officers of the Sheriff are authorised to re-enter the Glenwood premises to remove any seized items that were unable to be removed during the initial seizure, or to re-enter the Glenwood premises to sell seized items on site;

4. Officers of the Sheriff may request that any member of the New South Wales Police Force assist in the enforcement of the order for entry made by the Court.

15. The solicitors for the Applicant should ensure that the Sheriff is provided with copies of my judgment of 8 May 2017 and the present judgment.

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Decision last updated: 22 September 2017