Marina Blue Pty Limited v Gear (No 3)

The dispute between Marina Blue Pty Limited and Gear was heard by the Supreme Court of New South Wales. The primary issue was whether a writ of possession issued by the Registrar of the Supreme Court was validly served on the defendant. The writ was issued under section 107 of the Supreme Court Act 1970 (NSW) and related to the recovery of possession of a property. The defendant argued that the writ was not validly served, and consequently, the court did not have jurisdiction to enter a judgment for the plaintiff.

The court was required to determine the precise moment when a writ of possession is considered issued for the purposes of service. It needed to establish whether the writ was deemed issued when it was delivered to the Sheriff, when the Sheriff endorsed it as received, or at some other point in the process. The court also considered whether the failure to serve the writ within the statutory time limit rendered it ineffective, or if any delay in service was inconsequential to the validity of the writ. The legal principles surrounding the service of writs and the effect of procedural errors on the court's jurisdiction were pivotal to the decision.

The court concluded that the writ of possession was validly issued and served despite the procedural delay. It held that the writ was issued when it was delivered to the Sheriff, not when endorsed by the Sheriff. The court found that the statutory requirement for service within 28 days was not a jurisdictional prerequisite, and any delay in service did not invalidate the writ or the subsequent judgment. The court emphasised that the absence of a point of principle at stake meant that the procedural error did not affect the validity of the writ or the court's jurisdiction. Consequently, the writ of possession was deemed valid, and the court upheld the judgment in favour of the plaintiff.