Marina Blue Pty Limited v Gear (No 3)

[2018] NSWSC 1529

Supreme Court

New South Wales

Medium Neutral Citation:	Marina Blue Pty Limited v Gear (No 3) [2018] NSWSC 1529
Hearing dates:	By way of written submissions
Date of orders:	10 October 2018
Decision date:	10 October 2018
Jurisdiction:	Common Law
Before:	Harrison AsJ
Decision:	The Court orders that  (1) A writ of possession is to issue against the defendant. Such writ is not to issue until 21 November 2018.
Catchwords:	CIVIL PROCEDURE – Date of issue of writ of possession – No point of principle
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 56 Local Government Act 1993 (NSW), s 124 Sheriff Act 2005 (NSW), s 7A(3)
Cases Cited:	Marina Blue Pty Limited v Gear (No 2) [2018] NSWSC 1442
Category:	Procedural and other rulings
Parties:	Marina Blue Pty Limited (Plaintiff) Trevor Gear (Defendant)
Representation:	Counsel: G Rundle (Plaintiff) Self-represented (Defendant)   Solicitors: Jenson Partner (Plaintiff) Self-represented (Defendant)
File Number(s):	2017/306734
Publication restriction:	Nil

Judgment

1. HER HONOUR: On 26 September 2018, I handed down judgment in Marina Blue Pty Limited v Gear (No 2) [2018] NSWSC 1442. Judgment was entered in favour of the plaintiff for possession of land. The parties were ordered to file and serve written submissions as to when the writ of possession should issue. I have now received those submissions.

2. Section 7A(3) of the Sheriff Act 2005 (NSW) relevantly reads:

“7A Powers of Sheriff when executing writs and warrants for possession of land

…

(3) The Sheriff must give the occupier of the land subject to a writ of possession of land ... not less than 30 days notice to deliver up possession.

…”

3. The plaintiff seeks the issue of a writ of possession of the property. From what I understand of its counsel’s submissions, the plaintiff seeks that the writ of possession be issued forthwith. The defendant seeks that the writ of possession should not issue before 26 March 2019, being a period of six months from the date judgment was handed down.

The plaintiff’s submissions

4. The plaintiff submitted that by the time the Sheriff receives the writ and gives the notice, the defendant will have had more than adequate time to vacate the premises. The plaintiff says that the defendant has been in unauthorised occupation of the property by his own admission for seven years, and was requested to vacate the property in October 2017. The defendant has also not paid rent since November 2013.

5. The plaintiff further submitted that the defendant has at all times occupied the property without the plaintiff’s authority as the registered proprietor. The evidence indicates that since November 2013, the defendant has been in occupation of the property as a trespasser rather than as a lawful occupant. Since July 2017, this occupation has been in defiance of a demand for possession by the plaintiff. As a trespasser who does not pay for water consumption, the cost continues to accrue to the account of the plaintiff.

6. The plaintiff submitted that the defendant is the only person in occupation of the property and referred to the statutory declaration dated 5 October 2017 (Aff, Jensen 21 March 2018, Annexure D), where the defendant says that there is no other person “that occupies lives and maintains the property of XX Warlters Street Port Macquarie other than myself Trevor James Gear”.

7. At paragraphs (c) and (d) of his statutory declaration, the defendant states:

“(c) I myself Trevor Gear have been living at the property on and off for the last 15 years. With only vacancies due to my voluntary work care taking and saving Australia’s oldest sailing vessel the three masted tall ship Alma Doepel. During this time other people who I can no longer contact were living in the property paying no rent. With Myself Trevor James Gear the only one for the last seven years being uninterrupted constant and permanently living in the property XX Warlters Street Port Macquarie (X/XXXXX ) this is adverse to the true owner but is still current and goes on unmolested, uninterrupted and I continue to pay no rent to the owner.

(d) The land is used Privately and occupied and possessed by only myself Trevor James Gear.”

The defendant’s submissions

8. The defendant’s reasons for seeking a six month period is that he has been in uninterrupted possession and occupation of the property for many years. The plaintiff has done nothing to exercise its purported interest in the property during this period. There remain substantial unpaid rates in respect of the subject property and the plaintiff has failed to maintain the property.

9. The defendant submitted that he has paid rent in respect of the property to various individuals purporting to act as agent of the plaintiff. This has included, for example, Mr Dennis Tozer, who as recently as 2016 and at all times during his occupation maintained the property at his own expense without any assistance from the plaintiff. The defendant says that he has spent considerable time and expense maintaining the plumbing system in an operable state and he intends to assist in the maintenance of the property for the time he remains an occupant of the property.

10. The defendant submitted that at no stage during these proceedings has the plaintiff sought to achieve a just, quick and cheap resolution of the real issues in the proceeding pursuant to s 56 of the Civil Procedure Act 2005 (NSW). Nor has its legal representatives sought to do so.

11. The defendant says that he has commenced looking for suitable alternative accommodation for himself and his “companion” dog. If the defendant is able to secure suitable alternative accommodation prior to the issuance of the writ of possession, he undertakes to notify the plaintiff immediately and vacate the property.

12. The plaintiff takes issue with the above. It submitted that the defendant’s statement that he has paid rent in respect of his occupancy contradicts his defence (which was struck out) and his evidence filed in these proceedings. It is also contrary to his statutory declaration lodged with Land Registry Services NSW in support of his Application for Adverse Possessory Title to the property. If he did in fact pay rent as he now states, such evidence is fatal to his claim to have been in adverse possession of the property. Nor is there evidence filed by the defendant to the effect that he has maintained the subject property. To the contrary, on 28 June 2018, the Port Macquarie Hastings Council issued an order pursuant to s 124 of the Local Government Act 1993 (NSW) regarding the maintenance of the property (Ex G). This would indicate that the defendant has not properly maintained the property. In any event, the defendant has never been the lawful occupant of the property and remains a trespasser.

Conclusion

13. The plaintiff has had the benefit of occupation of the property for a number of years. He has not provided evidence of his payment of rent during this time. I accept that he may have done some maintenance work such as fixing the plumbing around the property from time to time. There are no tenants or other persons in occupation of the premises.

14. It is my view that taking the above submissions into account, six weeks is a reasonable period for the plaintiff to find alternate accommodation. I order that a writ of possession issue against the defendant. Such writ is not to issue until 21 November 2018.

The Court orders that

(1)   A writ of possession is to issue against the defendant. Such writ is not to issue until 21 November 2018.

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Decision last updated: 10 October 2018