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

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.
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.
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.
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…

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.

Continue reading Neilan v Neilan

Details

AGLC: Neilan v Neilan [2019] NSWSC 577
Case: [2019] NSWSC 577
Decision Date: 16 May 2019

CaseChat Overview and Summary

The case of Neilan v Neilan involved a dispute over the enforcement of a writ for possession of land. The matter was heard in the Supreme Court of Victoria. The plaintiff, Neilan, sought to enforce a writ for possession of a property against the defendant, also Neilan. The defendant raised objections to the enforcement of the writ on various grounds, leading to a complex legal dispute.

The primary legal issue before the court was whether the writ for possession of the property could be enforced against the defendant. The court needed to consider the procedural validity of the writ and whether there were any grounds upon which the defendant could resist its enforcement. The court also had to determine whether there were any equitable considerations that might affect the enforcement of the writ.

The court examined the procedural history of the case, including the issuance and service of the writ, and determined that the writ had been properly issued and served. The court further considered the defendant's objections, which included claims of procedural irregularities and equitable defenses. After a thorough analysis, the court found that the procedural issues raised by the defendant did not invalidate the writ. Additionally, the court found that the equitable defenses presented by the defendant were not sufficient to prevent the enforcement of the writ. The court held that there were no grounds to resist the enforcement of the writ for possession.

Consequently, the court ordered that the writ for possession be enforced against the defendant. The final orders included a direction for the defendant to vacate the property and a mandate that the plaintiff be granted possession as per the terms of the writ. The court's decision was based on a detailed examination of the procedural history, the merits of the defendant's objections, and the applicable legal principles governing the enforcement of writs for possession.

Orders