Leetham v Leetham

[2011] NSWSC 201

Supreme Court

New South Wales

Medium Neutral Citation:

Leetham v Leetham & ors [2011] NSWSC 201

Hearing dates:

Wednesday, 23 March 2011

Decision date:

23 March 2011

Before:

Brereton J

Decision:

Writ for delivery issued.

Sheriff authorised to enter premises of third party for purpose of taking possession of goods.

Catchwords:

PRACTICE AND PROCEDURE - enforcement of judgments - order for delivery up of goods - writ of delivery - where plaintiff fails to deliver property to defendants and delivers same to third-party - where third-party on notice of order and refuses to deliver up property - writ of delivery issued as of right - whether special circumstances such as to authorise order authorising Sheriff to enter third-party's premises.

Legislation Cited:

(NSW) Civil Procedure Act 2005, s 105, s 135.
Uniform Civil Procedure Rules, (Part 36, 39)

Category:

Consequential orders

Parties:

Betty Leetham (plaintiff)
Richard Leetham (first defendant)
Graham Leetham (second defendant)
Thomas Leetham Jr (third defendant)

Representation:

Counsel:
Plaintiff: no appearance
Defendants: Ms Lucinda Wilson
Solicitors:
Plaintiff: no appearance
Defendant: Mills Hebbard Moore

File Number(s):

2009/287669

Judgment

1. HIS HONOUR: On 23 March 2010, proceedings brought by the plaintiff Ms Betty May Leetham against the defendants Mr James Leetham, Mr Barry Leetham and Mr Graham Leetham, were settled and the Court, by consent, made orders, including:

5. The plaintiff to deliver up the family's Holy Bible in its present condition, including the pages containing the signatures and endorsements of the late Thomas Leetham's family.

1. Although the order does not explicitly say so, properly construed, the order means that the plaintiff is to deliver up the Bible to the defendants. That order has not been complied with. The evidence reveals that the plaintiff has instead delivered the Bible to one Mr Richard Leetham. So much is established by statements made by Mr Richard Leetham and the plaintiff in the presence of police and Mr Graham Leetham on 27 March 2010, attested to by Graham Leetham; by subsequent conversations between the defendants' solicitor and Richard Leetham; and by statements made by the plaintiff and Richard Leetham to the process server when they were served with the present Notice of Motion yesterday.

1. In addition to the telephone conversations to which I have referred, in which Mr Richard Leetham has maintained that he is not going to return the Bible but is keeping it, that the orders mean nothing because they are handwritten, and that the Bible is his to keep, the defendants' solicitors wrote to him on 14 July 2010 inviting him voluntarily to return the Bible; but he did not respond, at least in writing, to that letter and he has not returned the Bible as requested. The evidence establishes that the goods in question are likely to be at the residence of Mr Richard Leetham at XX XXXXX X Street, Deniliquin.

1. By notice of motion filed on 17 November 2010, the defendants seek the following:

1. That Richard Leetham deliver the Leetham Family Holy Bible in its present condition, including the pages containing the signatures and endorsements of the late Thomas Leetham's family to Thomas Leetham Jnr or to his Solicitor Peter Hebbard by 10 December 2010, pursuant to s 135(1) of the Civil Procedure Act 2005 and r.36.5 Uniform Civil Procedure Rule.

2. If the Family Bible is not delivered in accordance with Order 1 above, the issue of a writ for the delivery of the Leetham Family Holy Bible (described in Order 1 above) forthwith, pursuant to s 105 of the Civil Procedure Act 2005.

3. If the writ of delivery for the enforcement of the order for delivery of goods is issued as per order 2 above, the Sheriff is to enter the premises of Richard Leetham for the purpose of taking possession of the Family Bible described in Order 1 above, pursuant to s 135(a) Civil Procedure Act 2005 and return it to the office of Mills Hebbard Moore at 135 End Street Deniliquin.

4. Costs.

1. Mr Richard Leetham was and is not a party to the proceedings, although he was present at the hearing on 23 March 2010, including when the relevant order was negotiated and agreed. In my view, in circumstances where Richard Leetham has not been a party to the proceedings and has not to this point been joined, it would not be open to make an order against him in terms of claim 1 in the motion. However, that does not mean that the Court cannot issue a writ of delivery to give effect to its previous order.

1. The order being one for the delivery of goods, it may be enforced by a writ of delivery [(NSW) Civil Procedure Act 2005, s 105]. In addition, the Court may give directions with respect to the enforcement of its judgments and orders, including an order authorising the sheriff to enter premises for the purpose of taking possession of goods under a writ of execution [ Civil Procedure Act s 135(2)(a)].

Leave to issue the writ is not required by any of the provisions of UCPR r 39.1, and the defendants therefore are entitled to have it issued as of right - subject to compliance with, in particular, rules 39.2 and 39.3. The notice of motion for issue of the writ need not be served [UCPR, r 39.2], so its late service yesterday is no objection. The evidence establishes that the subject goods have not been delivered to the plaintiff, and the judgment was not one that afforded to the plaintiff the alternative of making a payment of damages. I am, therefore, satisfied that the defendants are entitled to have the writ issue.

1. As to an order under section 135(2)(a), UCPR r 39.52 provides that such an order may not be made in respect of any goods unless the Court is satisfied either (1) that while attempting to seize the goods the sheriff has been refused entry where the goods are believed to be; or (2) that there are special circumstances justifying the making of such an order. The first limb does not apply, as there has not yet been any attempt at execution. But Mr Richard Leetham was present when the original order was made, was on notice of it, received the Bible from the plaintiff knowing that the plaintiff was bound to deliver it up to the defendants, and when requested to co-operate in delivering up the Bible has not only declined to do so but has adamantly maintained that he will not do so. In addition, he was served - albeit belatedly, but unnecessarily, with the present motion, so that he is aware of its hearing today. Together, those matters provide "special circumstances" within the second limb of UCPR r 39.52, such as to authorise the making of an order under s 135(2)(a). Moreover, in terms of monetary value, the dispute is in small compass and the ability to recover costs is dubious, so there is therefore considerable desirability in minimising the necessity for any further application. If, which is conceivable, Mr Richard Leetham wishes to maintain a claim of right to the Bible, then it is open for him to do so in the event that it is seized by the Sheriff, whereupon the Sheriff can then bring interpleader proceedings.

1. Provision is made in the prescribed form of writ (Form 64) for inclusion of the costs of the writ. The legal costs for taking instructions, preparing documents and filing a notice of motion for a writ of execution, whether or not contested, are fixed at the amount of $630 [(NSW) Legal Profession Regulation 2005, Sch 2, item 7]. It appears that it will be necessary to execute the writ at two addresses: at Mr Richard Leetham's premises, to seize the goods the subject of the writ of delivery; and at the plaintiff's premises, to execute the writ for levy of property to recover the costs of the writ. Each of those attendances attracts a fee of $70 [(NSW) Civil Procedure Regulation 2005, Sch 2, items 4 and 5]. Accordingly, the total amount to be levied in respect of the costs of the writ will be $770.

1. The original order does not specify a time within which the plaintiff is to deliver up the Bible. Lest it become necessary for the defendants to resort to other means of enforcement of the judgment, I will, as requested by them, pursuant to UCPR r 36.5, by order require the plaintiff to deliver up the Bible within a specified time.

Orders

1. I order that a writ of delivery issue directing the Sheriff to seize the Leetham Family Holy Bible and deliver it to the defendants, and also to levy on the property of Mrs Betty Leetham to the amount of $770 for the costs of the writ, such writ to be in the form initialled by me, dated this day and placed with the papers.

1. Pursuant to (NSW) Civil Procedure Act s 135(2)(a), I order that the Sheriff be authorised to enter Mr Richard Leetham's premises at XX XXXXX X Street, Deniliquin, for the purpose of taking possession of the goods under the said writ.

1. I direct that a copy of these reasons be served on Mr Richard Leetham at the time of execution of the writ.

1. Pursuant to UCPR r 36.5, I order that the plaintiff by 1 April 2011 do the act required by order 5 made on 23 March 2010, by delivering up to the defendants the Leetham Family Holy Bible in the condition in which it was at that date, including the pages containing the signatures and endorsements of the late Thomas Leetham's family.

1. I reserve liberty to the plaintiff and to Mr Richard Leetham to apply, on such notice as the judge hearing the application may deem appropriate, to vary or set aside the foregoing orders.

1. I direct that these orders be entered forthwith.

**********