Liu v Guo (No2)
[2007] NSWSC 288
•12 February 2007
Reported Decision:
(2007) DFC 95-403
New South Wales
Supreme Court
CITATION: Liu v Guo (No2) [2007] NSWSC 288 HEARING DATE(S): 12 February 2007 JURISDICTION: Equity Division JUDGMENT OF: Brereton J EX TEMPORE JUDGMENT DATE: 12 February 2007 DECISION: Leave to issue writ of possession. CATCHWORDS: FAMILY LAW – De facto relationship – alteration of property interests – enforcement – writ of possession – whether available in aid of adjustive property order. LEGISLATION CITED: (NSW) Property (Relationships) Act 1984
(NSW) Uniform Civil Procedure Rules 2005, r 39.3(2)CASES CITED: Everett v Cypress Gardens Pty Limited (NSWSC, Waddell J, 27 June 1978, unreported)
Konstadatos v Apostolou (NSWSC, Waddell J, 16 May 1979, unreported)
Price v Hoy (NSWSC, Kearney J, 15 May 1979, unreported)
Nevill & Ashe, Equity Proceedings with Precedents (NSW)PARTIES: Tsan Sun Liu (plaintiff)
Tony Zhong Ren Guo (defendant)FILE NUMBER(S): SC 1213/04 COUNSEL: Ms Warda (sol) (plaintiff)
Ms Talevska (sol) (defendant)SOLICITORS: Coleman & Greig (plaintiff)
Michael Conley Lawyers (defendant)
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
BRERETON J
Monday 12 February 2007
1213/04 Tsan Sun Liu v Tony Zhong Ren Guo
JUDGMENT (ex tempore)
1 HIS HONOUR: Following a hearing in January and February 2006, I gave a judgment in these proceedings on 7 November last year, pursuant to which short minutes were brought in on 13 November 2006. Relevantly, the orders made in accordance with those short minutes are as follows:
2. The defendant shall pay to the plaintiff’s solicitors, Coleman and Greig Trust Account, the sum of $185,485, within three (3) months from the date of these orders.
3. For the purposes of giving effect to Order 2 hereof, the plaintiff shall, upon payment in accordance with Order 2 hereof, do all things and sign all documents necessary to remove the Caveat lodged by her over the property situated at and known as 31 John Street, Lidcombe (“the John Street property”).
3A. That upon the defendant giving the plaintiff, through her solicitors, 35 days’ written notice of his intention to proceed with the payment of $185,485 in accordance with Order 2 above, the plaintiff shall vacate the John Street premises at least five days prior to the date fixed by the defendant’s solicitors for payment in accordance with Order 2 (being not less than 40 days from the date of the written notice).
2 On 30 November 2006 the defendant’s solicitors wrote to the plaintiff’s solicitors, relevantly as follows:
We have obtained instructions from our client and we propose the following occur:
1. The defendant shall pay the Plaintiff the sum of $10,000 by 19 December 2006 in order to allow the Plaintiff to relocate.
2. Simultaneously with Order 1 the Defendant shall be allowed to inspect the premises situated at and known as 31 John Street, Lidcombe (“the John Street property”).
4. The Plaintiff must move out of the John Street property by 5 January 2007.3. Once payment is made to the Plaintiff as per Order 1, the Defendant may enter the John Street property in order to undertake renovations. The Defendant must not move into the property prior to 5 February 2007.
6. On the Plaintiff’s vacation of the John Street property she shall not remove any fixtures, furnishings, and goods in relation to the restaurant.5. The Defendant shall pay to the Plaintiff the sum of $175,485.00 by 5 February 2007.
3 The plaintiff’s solicitors replied on 29 November 2006, noting that the defendant had agreed to a partial release of the funds due under Order 2 to the extent of $10,000 and that, in accordance with the Court’s order, the defendant was to pay $185,485, and asking when the defendant anticipated he would be in a position to settle the matter on a final basis.
4 On 8 December the plaintiff’s solicitors reported that the plaintiff consented to the proposals set out in paragraphs 2 to 6 in the 30 November facsimile, but would like to receive the $10,000 before 14 December in order to facilitate her relocation by 5 January 2007. The defendant’s solicitors replied on 14 December that he was unable to pay $10,000 by 14 December, but would pay that sum by 18 December. A cheque for $10,000 was forwarded to the plaintiff’s solicitors on 19 December 2006.
5 By 8 January 2007 the defendant’s solicitors were complaining that the plaintiff had not vacated the premises by 5 January, as what they asserted was an agreement required. However, I do not think that there was any clear offer and acceptance so as to constitute an agreement at that point. By 11 January the plaintiff had apparently indicated that she was not moving out, claiming to be unable to do so by reason of being unable to afford alternative accommodation.
6 In a letter of 15 January 2007, the plaintiff’s solicitors asked to be advised the date for final settlement of the matter. The defendant’s solicitors replied on 16 January 2007, referring to the letter of 30 November 2006, which proposed final settlement on 5 February 2007. By further correspondence endeavours were made to bring about settlement on 29 January and to procure the plaintiff to vacate the John Street property, but without success. The defendant is ready, willing and able to settle, and the outstanding balance of $185,000 due under Order 2 is held by the defendant’s solicitors.
7 Order 3A contained a number of elements. The first was notice to the plaintiff, through her solicitors, of intention to proceed with the payment in accordance with Order 2. Although the defendant was required, by Order 2 to make the payment, there was then a default provision for sale of the John Street property in Order 4 if he did not do so.
8 The defendant’s solicitor’s letter of 30 November 2006, read as a whole, conveyed that the defendant did intend to proceed with payment in accordance with Order 2, and to do so by 5 February 2007. The letter included some matters which went beyond the scope of Order 3A and on which the defendant was not entitled to insist - for example, that the plaintiff move out of the property by 5 January in return for an accelerated payment of the initial $10,000. Notwithstanding that the letter went beyond what was contemplated by Order 3A, nonetheless it at least conveyed notice of the defendant’s intention to proceed with the payment of $185,485 in accordance with Order 2.
9 The next relevant element of Order 3A is that the plaintiff is required to vacate the John Street premises: “at least five days prior to the date fixed by the defendant’s solicitors for payment in accordance with Order 2 (being not less than 40 days from the date of the written notice”.
10 The 30 November letter identified the date for the final payment as 5 February 2007. 5 February 2007 was not less than 40 days from 30 November 2006. It follows that upon service of the defendant’s solicitor’s letter of 30 November 2006, the requirements of Order 3A were met and the plaintiff was obliged to vacate the John Street premises at least five days prior to 5 February 2007 - that is to say, not later than 31 January 2007.
11 As I have recorded, there was a substantial exchange of correspondence after 30 November 2006, which sought to vary the date for completion, and indeed the plaintiff obtained the benefit of a preliminary payment of $10,000, which, though I am not prepared to find was made pursuant to a binding agreement, was plainly received by her in circumstances where it was contemplated that she would vacate by 5 January, as distinct from February 2007. There is nothing in what passed between the parties after 30 November 2006 that would make it unconscionable or unreasonable for the defendant now to rely on the letter of that date, in circumstances where the plaintiff appears to have repudiated the subsequent arrangements. I therefore conclude that from 1 February 2007 at the latest, the plaintiff was bound to vacate the John Street premises.
12 The question becomes how that is to be enforced. The defendant’s solicitor has foreshadowed filing a motion to have the plaintiff dealt with for contempt and, alternatively, a motion for the issue of a writ for possession.
13 Even if contempt proceedings were otherwise appropriate, I would not entertain them except on proper notice to the alleged contemnor. Ordinarily that would include prior service on the alleged contemnor of the formal order of the Court, endorsed with a notice to party bound, personal service of the notice of motion, and almost inevitably an adjournment to enable the alleged contemnor to be brought before the Court and to be given a proper opportunity to answer the charge. I do not think that sufficient attention has been given to the procedural prerequisites for an application for contempt, and I am not inclined to embark, at least at this stage, on that course. If a contempt application is to be made, it should be made formally and in accordance with the rules of Court, and not by oral application.
14 So far as proceedings for possession are concerned, I have been troubled as to whether the Court can issue a writ of possession in aid of an order made under the (NSW) Property (Relationships) Act 1984. However, the Property (Relationships) Act, s 38(1)(k), empowers the Court to:
Make any other order or grant any other injunction (whether or not of the same nature as those mentioned in the preceding paragraphs) which it thinks it is necessary to make to do justice.
15 Section 38(2) provides that a court may, in relation to an application under the Part:
(b) Make any order or grant any remedy or relief under this Part in addition to or in conjunction with making any other order or granting any other remedy or relief which it is empowered to make or grant under this Act or any other Act or any other law.(a) Make any order or grant any remedy or relief which it is empowered to make or grant under this or any other Act or any other law; and
16 Section 38(2)(a) therefore confers on the Court, in proceedings under the Property (Relationships) Act, power to grant any remedy which it would grant under any other Act or any other law.
17 Although, generally speaking, a writ of possession is the result of a proceeding for possession of land of the type which replaces the former proceedings in ejectment, there are occasions in which, in Equity, a judge may order that a party have possession of certain land, the subject of the proceedings, and that a writ of possession issue.
18 Some situations in which this has occurred are referred to in Nevill & Ashe, Equity Proceedings with Precedents, [2207], and include Everett v Cypress Gardens Pty Limited (NSWSC, Waddell J, 27 June 1978, unreported); Konstadatos v Apostolou (NSWSC, Waddell J, 16 May 1979, unreported); Price v Hoy (NSWSC, Kearney J, 15 May 1979, unreported).
19 The effect of Order 3A and the events which have subsequently occurred is to entitle the defendant to possession of the John Street property.
20 Upon the undertaking of the defendant’s solicitor, Lila Talevska, to pay the appropriate filing fees, I grant leave to the defendant to file a notice of motion for writ of possession of land in the form initialled by me, dated this day and placed with the papers. I direct that the motion be returnable instanter. I dispense with further service of the motion.
21 I grant leave to the defendant to have issued a writ of possession of the land described in the schedule. I dispense with the requirement for an affidavit under (NSW) Uniform Civil Procedure Rules 2005, r 39.3(2) to the extent that the affidavit of the defendant sworn 9 February 2007 does not fully comply with the requirements of that rule.
22 I order that a writ of possession issue, directing the sheriff to enter the land and property situated at and known as 31 John Street, Lidcombe and to cause the defendant, Tony Zhong Ren Guo to have possession of it.
23 I order that execution of the writ of possession be stayed until and including Thursday, 15 February 2007. I order that the plaintiff pay the defendant’s costs of and incidental to the application assessed in the sum of $3,000.
24 I reserve liberty to apply by arrangement with my associate in the event of any difficulty arising in the implementation of these orders, or in the event that any application is to be made for an extension of the stay.
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