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)

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:

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.

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

That such orders be entered forthwith.

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.
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NSWSC 671
Decision Date: 24 May 2017

CaseChat Overview and Summary

The case of Kingelty v Stockley involved a dispute between the plaintiff, Kingelty, and the defendant, Stockley, regarding the execution of a writ of possession. The matter was brought before the Supreme Court of Victoria, where the plaintiff sought to enforce the writ against the defendant. The plaintiff claimed that the writ was validly served, while the defendant contested the validity of the service, arguing that it was not carried out in accordance with the statutory requirements. The core legal issue before the court was whether the writ of possession was executed properly and if there were any procedural errors that invalidated the service.

The court examined the procedural requirements for the execution of a writ of possession under the relevant legislation. It considered whether the writ was served in the manner prescribed by law, which included the timing, manner, and documentation of service. The court also assessed whether the plaintiff had complied with all procedural requirements and whether any errors in the execution could be considered as mere formalities or if they went to the substance of the service. The court's reasoning focused on statutory interpretation and the importance of adhering to prescribed procedures to ensure the validity and enforceability of legal instruments such as writs of possession.

The Supreme Court concluded that there were no substantial procedural errors in the execution of the writ of possession, and the service was in compliance with the statutory requirements. The court held that the minor discrepancies did not affect the validity of the writ's service. Therefore, the plaintiff's claim to enforce the writ was upheld, and the defendant's objections were dismissed. The court's decision was based on a detailed analysis of the statutory provisions and the procedural steps taken by the plaintiff in executing the writ. The court determined that the minor procedural errors did not undermine the overall validity of the writ's service. The final orders of the court were that the writ of possession was validly executed and enforceable against the defendant.

Orders