O.R. Smee Pty Ltd (in liquidation) v Calkin

O.R. Smee Pty Ltd, in liquidation, brought an action against Calkin, seeking a declaration that the defendant had no right to enter, occupy or remain on certain land. The plaintiffs also sought orders for possession and an injunction to restrain any interference with that possession. The dispute arose after the defendant had occupied the property for many years, claiming approval from a relative of one of the plaintiff’s directors. Various motor vehicles and farming equipment were stored on the property. The parties agreed that there was no legal basis for the defendant’s continued occupation following the appointment of a liquidator for the plaintiff.

The court had to decide whether the defendant had any legal right to occupy the property and, if not, whether the orders sought by the plaintiffs should be made. The central issue was whether the claimed approval from a relative of one of the plaintiff’s directors was sufficient to establish any right of occupation. The court considered the nature of the defendant's occupation, the presence of the stored goods, and the effect of the liquidation on any purported rights of occupation.

The court found that the defendant had no legal right to occupy the property. It noted that the claimed approval from a relative of one of the plaintiff’s directors did not create any legal basis for the defendant's occupation. The court emphasised that the appointment of a liquidator terminated any rights of occupation by persons other than the liquidator. The court granted the plaintiffs' orders for possession and an injunction to restrain any interference with that possession. However, it stayed the orders for a period to allow the defendant to remove the goods stored on the property. This was to provide a reasonable opportunity for the defendant to vacate the premises without undue hardship.

The court made a declaration that the defendant had no right to enter, occupy or remain on the land. It also ordered that the defendant vacate the premises within a specified period. The injunction to restrain any interference with the plaintiffs' possession was granted, but its operation was stayed for the period necessary to allow the defendant to remove the goods.