Kingsley Securities Pty Ltd v Weng - [2023] NSWSC 1110

Supreme Court

New South Wales

Medium Neutral Citation: Kingsley Securities Pty Ltd v Weng [2023] NSWSC 1110
Hearing dates: 8 September 2023
Date of orders: 8 September 2023
Decision date: 08 September 2023
Jurisdiction: Common Law
Before: Campbell J
Decision:
Leave to the plaintiff for the issue of a writ of restitution to restore the plaintiff's possession of the land comprised in folio identifier XX/XXXX of the register and known as XX/XX-XX XXXXX XX XXX Homebush West in the State of New South Wales

Catchwords:
CIVIL PROCEDURE — enforcement — writ of restitution — writ for possession obtained against the defendants — orders made for limited period permitting defendants to have access to the property whilst obtaining imminent refinance — debt was not repaid — defendants’ continued use of the land beyond the temporary access ordered was a trespass — consideration of whether sufficient nexus between that trespass and the original recovery of possession — writ of restitution granted

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW) r 39.1

Cases Cited:
Capital Access Pty Ltd v Charnwood Constructions Pty Ltd [2022] NSWSC 1185
Wilkshire County Council v Frazer (1985) 52 P&C R 46

Category: Procedural rulings
Parties: Kingsley Securities Pty Ltd (Plaintiff)
Kai Yu Weng (First Defendant)
Ke Fu Guo (Second Defendant)
Representation:
Counsel:
M Daniels (Plaintiff)
No appearance (Defendants)
Solicitors:
Elliott May Lawyers (Plaintiff)

File Number(s): 2022/23572

Ex Tempore JUDGMENT (revised)

I am dealing with an application for leave to issue a writ of restitution in respect of real property situated at XXXXX XX XXXXX X, Homebush West. Ms Daniels of counsel appears for the plaintiff, the applicant for the writ. There is no appearance for either defendant today. I am satisfied that both defendants have received proper notice of the application and of today's hearing day. I have formed that view on the basis of the second affidavit of Bilal Malick, solicitor, sworn 6 September 2023. I am satisfied from that affidavit, first, that both defendants continue to reside at the property and that the notice of motion and affidavit in support were served on the defendants on 18 August 2023 at their known email address; and secondly, after the Registrar fixed today’s hearing on 23 August 2023 the plaintiff's solicitor advised the defendants of the orders by email on that day. It is quite apparent to me from annexure BHM-3 to the affidavit that commercial agents, acting on behalf of the plaintiff, attended the property on 29 August 2023 and were able to ascertain that the defendants continued to occupy the premises. At the commencement of the hearing, in accordance with the normal practice, the name of each defendant was called outside the court thrice and there was no appearance by either of them.
The proceedings in this Court were proceedings by the plaintiff lender against the defendants, who had guaranteed a loan to a corporate entity controlled by one or other of them. They had provided the premises as security for their guarantee and for 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: [2023] NSWSC 1110
Decision Date: 08 September 2023

CaseChat Overview and Summary

In the matter of Kingsley Securities Pty Ltd v Weng, the dispute centred around the enforcement of a writ of restitution following a successful claim for possession of property. The writ was obtained by Kingsley Securities against the Wengs. The Federal Circuit and Family Court of Australia was tasked with determining whether the writ should be enforced and, if so, to what extent. The primary legal issues revolved around the interpretation of the original orders for possession and whether the defendants' continued use of the property beyond the temporary access period constituted a trespass.

The court considered whether the defendants' actions constituted a trespass that was sufficiently connected to the original claim for possession. The defendants had been granted limited access to the property to facilitate the refinancing of the debt, which was to be repaid to the plaintiff. However, the refinancing did not occur, and the defendants continued to use the property. The court found that the defendants' continued use of the property beyond the temporary access period was a trespass. The court then considered whether this trespass was sufficiently connected to the original recovery of possession to warrant enforcement of the writ of restitution.

The court concluded that the defendants' trespass was sufficiently connected to the original recovery of possession. The court reasoned that the defendants' actions, which involved an unauthorised continued use of the property, directly undermined the original purpose of the writ. Therefore, the writ of restitution was granted. The court ordered that the defendants vacate the property immediately and comply with the original orders for possession.

Orders