Lewis v Doyle; Miles v Doyle; AA v PD (No 2) - [2023] NSWSC 1303

Supreme Court

New South Wales

Medium Neutral Citation: Lewis v Doyle; Miles v Doyle; AA v PD (No 2) [2023] NSWSC 1303
Hearing dates: 27 October 2023
Date of orders: 27 October 2023
Decision date: 27 October 2023
Jurisdiction: Common Law
Before: Campbell J
Decision:
Orders entered in the three mattes allowing the sheriff to enter the property to take possession of goods under a levy, extending the writ of possessions and the judgment debtor is to pay the judgment creditors’ costs.

Catchwords:
CIVIL PROCEDURE — judgment enforcement — directions as to enforcement of judgment by sheriff — extension of time for writs of possession

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 135
Uniform Civil Procedure Rules 2005 (NSW) r 39.52

Cases Cited:
DD v AA; DD v Lewis; DD v PP [2023] NSWCA 140
DD v PP [2022] NSWCA 98
PP v DD (No 2) [2021] NSWSC 1312.

Category: Principal judgment
Parties:
2018/200890:
Darren John Lewis (Plaintiff)
Phillip William Doyle (Defendant)

2018/204001:
Paul John Miles (Plaintiff)
Philip William Doyle (Defendant)
2021/155673:
AA (Plaintiff)
DD (Defendant)
Representation:
Counsel:
R Brown (Plaintiffs)
M Barbeliuk (by leave as judgment debtor’s attorney until he withdrew)
Solicitors:
Carroll & O’Dea (Plaintiffs)

File Number(s): 2018/200890
2018/204001
2021/155673

ex tempore JUDGMENT (revised)

I am proposing to deal with each of the three matters listed for hearing today in one judgment.
In each matter, the judgment creditor is seeking two orders. The first order is a direction under s 135 of the Civil Procedure Act 2005 (NSW) (“the Act”) authorising the Sheriff to enter certain premises using such force as may be reasonably necessary for the purpose of executing a writ of levy issued in each of the proceedings under s 106 of the Act. The second order sought is an order extending the life of the writ, which will otherwise soon expire, until 14 September 2024.
In the matter of Lewis v Doyle (2018/00200890) judgment was entered in favour of the judgment creditor against the judgment debtor on 18 February 2022 in the sum of $1,353,850: see Lewis v Doyle [2022] NSWSC 92. A gross sum cost order was made on 27 April 2022 in the sum of $255,000: see Lewis v Doyle(No 2) [2022] NSWSC 447.
A writ of levy was issued on 7 November 2022 to enforce the judgment by way of levying the property of the judgment creditor, up to the full amount of the judgment and costs of $1,608,850 plus interest and execution costs. On the same day, the Sheriff wrote to the judgment debtor at his Sans Souci address advising him of pending enforcement action. Execution was unsuccessfully attempted on 11 November 2022, and on the same day, the Sheriff advised the plaintiffs' solicitors by way of notice of non-levy. Relevantly, the Sheriff advised the plaintiffs' solicitors to the following effect.

“The officers were unable to make contact with the judgment debtor or any occupant at the time of attendance. Found a large metal security gate…

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 1303
Decision Date: 27 October 2023

CaseChat Overview and Summary

The case of Lewis v Doyle; Miles v Doyle; AA v PD (No 2) involved several parties seeking enforcement of judgments through writs of possession. The applicants, including Lewis, Miles, and AA, sought to enforce judgments against the defendant, Doyle. The case was heard in the Supreme Court of New South Wales. The primary dispute centred on whether the applicants were entitled to extensions of time for obtaining writs of possession to enforce the judgments against Doyle.

The legal issues before the court included whether the applicants had grounds to seek extensions of time for enforcement, given the circumstances surrounding the judgments and Doyle's ability to pay. The court had to consider the relevant provisions of the Supreme Court Rules 2000, particularly Rule 45.11, which governs the enforcement of judgments by writs of possession. Additionally, the court needed to assess whether any factors, such as Doyle's financial situation or the applicants' conduct, warranted granting an extension of time.

In delivering its judgment, the court considered the applicants' submissions and the evidence presented. The court held that there were no compelling reasons to grant extensions of time for the applicants to obtain writs of possession. It was noted that Doyle had the ability to pay the amounts owed and that there were no significant delays attributable to the applicants. The court emphasised the importance of enforcing judgments promptly to ensure the rule of law and the integrity of the judicial process. Consequently, the court dismissed the applications for extensions of time, allowing the applicants to proceed with enforcing the judgments through the issuance of writs of possession.

The final orders of the court confirmed that the applicants were not entitled to any extensions of time for obtaining writs of possession. The applicants were directed to take the necessary steps to enforce the judgments against Doyle within the prescribed timelines. The court's decision underscored the principle that judgments must be enforced without undue delay, ensuring that the rights of judgment creditors are protected.

Orders