Neilan v Neilan

[2019] NSWSC 577

Supreme Court

New South Wales

Medium Neutral Citation:	Neilan v Neilan [2019] NSWSC 577
Hearing dates:	13 May 2019
Date of orders:	13 May 2019
Decision date:	16 May 2019
Jurisdiction:	Equity
Before:	Ward CJ in Eq
Decision:	(1)   Give judgment in favour of the plaintiff for possession of the land comprised in Certificate of Title Folio Identifier 13/8843 and known as Flat 3, 35 Arcadia Street, Coogee. (2)   Grant leave to the plaintiff to issue a writ of possession, such writ not to issue for a period of 28 days from the date of these orders. (3)   Order the defendant to pay the plaintiff’s costs of the notice of motion. (4)   Direct the plaintiff to notify the defendant by email of the making of these orders and to forward a copy of the orders to the defendant.
Catchwords:	JUDGMENTS AND ORDERS — Enforcement — Writ for possession of land
Legislation Cited:	Conveyancing Act 1919 (NSW), s 36A Uniform Civil Procedure Rules 2005 (NSW), rr 36.8, 39.3
Cases Cited:	Neilan v Neilan [2019] NSWSC 66 New South Wales Trustee and Guardian v Colin Edward James Schneider [2011] NSWSC 424 Pham v Enterprise ICT Pty Ltd (No 8) [2018] NSWSC 1492
Category:	Principal judgment
Parties:	Emily Kate Neilan (Plaintiff) Steven Neilan (Defendant)
Representation:	Counsel: M Southwick (Plaintiff)   Solicitors: Grahame Howe & Co
File Number(s):	2018/278295
Publication restriction:	Nil

Judgment

1. HER HONOUR: Before me is a notice of motion filed in court today by the plaintiff, Emily Kate Neilan, seeking judgment for possession of the land the subject of earlier proceedings before me, together with the issue of a writ for the possession of the land in support of that affidavit. I have read two affidavits of the plaintiff’s solicitor, being affidavits of Grahame William Howe, sworn 2 May 2019 and 13 May 2019 respectively.

2. This matter came before me on 6 February 2019 in the duty list on an application by the plaintiff pursuant to an amended summons filed 10 December 2018 for an order pursuant to s 36A of the Conveyancing Act1919 (NSW) that the shares in a particular company, Avelona Flats Pty Ltd, held in the name of the plaintiff and the defendant as co-tenants in common be sold and for consequential relief in relation thereto.

3. There was no appearance by the defendant on the hearing of that application nor has there been any appearance by the defendant on the hearing of the present notice of motion, but I am satisfied from the evidence that has been read by the plaintiff that the defendant is on notice of the application that is now being made for judgment for possession of the land and the issue of a writ for the possession of the land.

4. I will not set out the background of the matter, which is set out in my earlier reasons (Neilan v Neilan [2019] NSWSC 66). I have been taken to the judgment of Brereton J (as his Honour then was) in New South Wales Trustee and Guardian v Colin Edward James Schneider [2011] NSWSC 424 in which his Honour considered the remedies available to a court of equity in relation to the giving of a judgment for possession. In that case what had been claimed was injunctive relief in relation to trespass. I have had regard to those reasons (at [12]ff). The affidavit of the plaintiff’s solicitor sets out what is required for the purposes of r 36.8 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), in particular, her affidavit is to the effect that, other than the defendant, there is no other person in occupation of the premises. That affidavit similarly complies with the requirement of UCPR r 39.3 in relation to an application for a writ of execution.

5. I also note the more recent authority in Pham v Enterprise ICTPty Ltd (No 8) [2018] NSWSC 1492 where Kunc J granted leave for the issue of a writ of possession for land, it having been established that there were no discretionary considerations against this (such as evidence of the difficulties with relocating an elderly and sick individual, and that it was not suggested that the defendant (or the elderly and sick individual) could not be accommodated living somewhere else).

6. I should note that the evidence before me includes material by email communication from the defendant in which the defendant does make various statements as to his ill health and raises issues as to whether he is in a position to relocate. In particular there is an email dated 6 May 2019 from the defendant to the plaintiff’s solicitor in which, amongst other things, he refers to: injuries; says he cannot pack anything as he is struggling just getting out of bed; says he cannot walk further than 50 metres nor can he lift anything over 5 kilograms; and says that his health does not allow him to move.

7. I have noted those assertions in the email communications but there has been no appearance by or on behalf of the defendant and no evidence from him that would enable me to form a view as to whether those assertions are well-founded. I also note that it is contemplated, that on the sale of the property the defendant will obtain a share of 25% of the proceeds of sale and there is nothing to suggest that that would not give the defendant an opportunity to relocate.

8. In the circumstances I am persuaded that the plaintiff has established that it is appropriate for judgment for possession of land to be given. The defendant has been on notice of the order I made that the defendant vacate the property and that the property be sold. The defendant has chosen not to comply with that order. The defendant’s daughter seeks the present alternative relief rather than commencing contempt proceedings against her father.

9. It will be open to the defendant if the defendant seeks to vary or set aside the orders to make an application in the ordinary course so to do.

10. Costs ordinarily follow the event. Further, I note the non-compliance by the defendant with the orders that I made in February this year. Accordingly, I make the following orders:

1. Give judgment in favour of the plaintiff for possession of the land comprised in Certificate of Title Folio Identifier 13/8843 and known as Flat 3, 35 Arcadia Street, Coogee.

2. Grant leave to the plaintiff to issue a writ of possession, such writ not to issue for a period of 28 days from the date of these orders.

3. Order the defendant to pay the plaintiff’s costs of the notice of motion.

4. Direct the plaintiff to notify the defendant by email of the making of these orders and to forward a copy of the orders to the defendant.

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Decision last updated: 16 May 2019