Kingelty v Stockley

[2017] NSWSC 671

Supreme Court

New South Wales

Medium Neutral Citation:

Kingelty v Stockley [2017] NSWSC 671

Hearing dates:

24 May 2017

Date of orders:

24 May 2017

Decision date:

24 May 2017

Jurisdiction:

Common Law

Before:

Bellew J

Decision:

(1) I direct that the sheriff execute the writs of possession over lots 41 and 42 in deposited plan 548253, issued on 1 May 2017, forthwith.

 

(2) I order that the defendant pay the first and second plaintiffs' costs of the notice of motion on an indemnity basis.

 (3) I order that these orders be entered forthwith.

Catchwords:

PRACTICE AND PROCEDURE – Execution of writs of possession – No point of principle

Legislation Cited:

Civil Procedure Act 2005 (NSW)
Sheriff Act 2005 (NSW)

Category:

Principal judgment

Parties:

Lloyd James Kingelty – Plaintiff
Susana Ngujo Kingelty - Plaintiff

  Aaron Bruce Stockely - Defendant

Representation:

Counsel:
S Lees – Plaintiff
No appearance of the Defendant

  Solicitors:
Nelson Keane and Hemingway - Plaintiffs

File Number(s):

2016/328173

Publication restriction:

Nil

Judgment – ex tempore (revised)

1. By notice of motion dated 12 May 2017 the plaintiffs in these proceedings sought a number of orders arising out of the execution of a settlement deed on 10 April 2017 (“the deed”). Although a total of four orders were originally sought, they have been refined to the point where the plaintiffs now seek orders in the following terms:

1. That the court direct the sheriff to execute the writs of possession over lots 41 and 42 in deposited plan 548253, issued on 1 May 2017, forthwith.

2. That the defendant pay the first and second plaintiffs' costs of the notice of motion on an indemnity basis.

3. That such orders be entered forthwith.

2. The notice of motion is supported by four affidavits of Jason Robert Townsend, solicitor, dated 12 May 2017, 17 May 2017, 18 May 2017 and 23 May 2017 respectively.

3. The motion originally came before Walton J on 19 May 2017, at which time his Honour directed that the solicitor for the plaintiffs, and his Honour's Associate, advise the defendant by email that the matter was to be heard today. There is evidence before the Court that such correspondence was sent in accordance with his Honour's orders. The defendant has been called three times outside the Court this morning and has not appeared. I am satisfied in those circumstances that he is on notice of the matter and that it is appropriate to proceed with it in his absence.

4. The background to the matter can be summarised as follows, noting that I draw such summary from the outline of submissions provided to the court by counsel for the plaintiffs.

5. The plaintiffs are the registered proprietors of two rural properties near Dubbo, being lots 41 and 42 in deposited plan 548253. The defendant was previously given the right to occupy the properties, such right arising from a contract for the sale of lot 41, and an option agreement over lot 42. The right to occupy was given prior to the completion of the sale of lot 41, and the exercise of the option to purchase lot 42.

6. On 1 September 2016 the plaintiffs terminated the contract for the sale of lot 41. The option in respect of the second lot lapsed in the absence of being exercised by the defendant.

7. On 3 November 2016 the plaintiffs commenced proceedings seeking possession of both of the properties. Those proceedings were settled by the execution of the deed on 10 April 2017. A copy of the deed is annexed to the affidavit of Mr Townsend of 12 May 2017. Three provisions of it should be noted.

8. Firstly, pursuant to clause 1.1(a), the defendant was required to provide vacant possession by no later than 5.00pm on 24 April 2017. Secondly, clause 1.2(a) set out the terms of the consent orders which disposed of the proceedings. Thirdly, clause 2.1(c) provided that a party in default under the deed was to pay the other party's costs incurred as a result of any default, or as a result of any necessity to enforce the provisions of the deed, on an indemnity basis.

9. On 10 April 2017 judgment was entered by consent in accordance with the terms of the deed, with orders being made (inter alia) in favour of the plaintiffs for possession of lots 41 and 42. Order 4(a) required the defendant to remove equipment, vehicles and belongings from the properties by 5:00pm on 24 April 2017. Order 4(b) operated to restrain the defendant from entering on to, or remaining in or on the land thereafter. Order 4(d) provided that the sheriff was not to execute any writ of possession before 26 April 2017.

10. There is evidence before the Court that writs of possession were issued on or about 1 May 2017. The affidavit evidence of Mr Townsend establishes that on 16 May 2017 the defendant was given notice of the issue of those writs.

11. It is against that background that the plaintiffs now seek the orders to which I earlier referred. Those orders are sought pursuant to section 135 of the Civil Procedure Act 2005 (NSW) which, it has been submitted, provides the Court with a broad power to make orders regarding the enforcement of its judgments.

12. In the circumstances of the present case the provisions of section 7A of the Sheriff Act 2005 (NSW) (“the Act”) require some brief consideration. Section 7A(3) of the Act requires the sheriff to give the occupier of any land which is subject to a writ of possession not less than 30 days' notice to deliver up possession. Part of the rationale underlying that provision is to ensure that an occupier is given adequate notice before a writ of possession is executed, so as to allow such person(s) to (inter alia) make application to the Court for a stay of the execution of the writ if there are grounds on which to do so. In the present case there is evidence that the defendant was notified of the writs on 16 May 2017. Self-evidently, 30 days have not yet expired since that notice was given. However, section 7A(4) of the Act provides that subsection (3) does not apply if execution of the writ has previously been stayed by a court.

13. In the present case the orders made on 10 April 2017 did not incorporate, in express terms, an order staying the execution of the writ. However, order 4(d) (referred to at [9] above) necessarily had that effect, by providing that the sheriff was not to execute the writs of possession before 26 April 2017.

14. In those circumstances, I am satisfied that by virtue of s. 7A(4), s. 7A(3), which would otherwise require the giving of 30 days notice, does not apply. Further, I accept the submission of counsel for the plaintiffs that the evidence establishes that the defendant agreed to give vacant possession of the properties by 24 April 2017, that he is subject to orders of this Court requiring him to remove his belongings from the properties and restraining him from remaining there, and that he has been on notice of the potential issue of writs of possession since at least 10 April 2017, that being the date on which the deed was entered into and the consent orders made.

15. There is no doubt on the evidence before me that the defendant is in breach of both the orders made by the Court on 10 April 2017, and the terms of the deed. I am satisfied that he has had ample notice of the necessity to vacate the property, as well as ample notice of the fact that a writ of possession would be executed in the event that he did not do so. For these reasons, the orders sought should be made.

16. Accordingly, I make the following orders:

1. I direct that the sheriff execute the writs of possession over lots 41 and 42 in deposited plan 548253, issued on 1 May 2017, forthwith.

2. I order that the defendant pay the plaintiffs' costs of the notice of motion on an indemnity basis.

3. I order that these orders be entered forthwith.

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Decision last updated: 05 June 2017