Perpetual Ltd v Field - [2010] VSC 445

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

No. 88 of 2010

PERPETUAL LIMITED (ACN 000 431 827)	Plaintiff
- and -
CHRISTOPHER GRANT FIELD and	Defendants
GWYNNETH SUSAN FIELD
JUDGE:	Mukhtar, AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	1 October 2010
DATE OF JUDGMENT:	1 October 2010 (and revised on 19 October 2010)
CASE MAY BE CITED AS:	Perpetual Ltd v Field
MEDIUM NEUTRAL CITATION:	[2010] VSC 445

EXECUTION ― Warrant of possession of land ― Recovery of possession by Sheriff ― Subsequent re-entry by defendant ― No procedure for reclaiming possession ― Adaptation of existing procedure ― Leave to file another warrant of possession ― R v Elliott [1955] VLR 126 distinguished

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Gutierrez (solicitor)	HWL Ebsworth
For the Defendants	No appearance

HIS HONOUR:

This was an action by a lender for possession of mortgaged land. The problem that has arisen in this case may arise in other cases where a mortgagor defies a Court order for possession. I have published these reasons because the decision I have made, or the solution I have devised, may have some practical utility for practitioners or for those administering process in the Court.

Under s 3(3) of the Supreme Court Act 1986, “A judgement in any proceeding must be enforced in accordance with Chapter I of the Rules of the Supreme Court and not otherwise.”

In this case, on 28 April 2010, the Court gave a judgment that the plaintiff recover possession on mortgaged land (“the land”) known as 24 Belmont Street, Preston, or Preston West.

Rule 66.03(a) states that a judgment for possession of land maybe enforced by a warrant of possession.

On 12 May 2010, the plaintiff issued a warrant of possession to the sheriff which gave the sheriff a warrant to enter the land and cause the plaintiff to have possession of it. Under s 20 of the Sheriff Act, the sheriff is empowered, in accordance with that warrant, to enter the land for the purpose of taking possession.

On 21 September 2010, the sheriff executed the warrant, gave possession to the plaintiff, and departed. Thus, execution was complete. But, the second defendant has since re-entered or re-taken possession of the land and will not surrender possession. Putting to one side the possible availability of proceedings for contempt of court, or a civil or criminal proceeding in trespass, the question is whether the Court can give leave to the plaintiff to issue a fresh warrant under the authority of which the sheriff can re-take possession of the land. The plaintiff does not wish to exercise self-help or prolong matters with more Court proceedings.

There is no provision in the Rules to deal with this situation. I do not think r 66.15 can be invoked as I do not construe it as being designed to meet this situation. That rule empowers the Court to “make such order as it thinks fit in aid of the enforcement of…

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 Perpetual Ltd v Field

Details

AGLC: [2010] VSC 445
Case: [2010] VSC 445
Decision Date: 1 October 2010 (and revised on 19 October 2010)

CaseChat Overview and Summary

Perpetual Limited (the plaintiff) commenced an action against Christopher Grant Field and Gwyneth Susan Field (the defendants) seeking possession of mortgaged land known as 24 Belmont Street, Preston, or Preston West. The defendants defied a court order for possession, which resulted in the sheriff executing a warrant of possession and delivering possession of the land to the plaintiff. However, the defendants subsequently re-entered and refused to surrender possession of the land. The plaintiff sought leave to issue another warrant of possession to recover possession of the land.

The legal issues before the court were whether the plaintiff could issue another warrant of possession after the initial warrant had been executed and whether there was a procedure for reclaiming possession of the land after it had been delivered to the plaintiff. The court had to determine if the existing rules and statutes provided a solution to the problem or if a new procedure needed to be adapted.

The court found that there was no existing procedure for reclaiming possession of the land after it had been delivered to the plaintiff. The court considered the possibility of following the English practice of issuing a writ of restitution, as done in R v Elliott [1955] VLR 126, but ultimately decided to take a different course. The court held that the judgment for possession was valid and subsisted, and the warrant already issued had been completed or "spent." The court saw no reason in principle why the judgment should not continue to form a legal basis for the issuing of another warrant of possession. The court granted the plaintiff leave to file another warrant of possession, which should be clearly distinguished from the first warrant by stating under the heading wording such as "Issued by leave of the Court granted on (date)."

The court did not see another warrant as an abuse of process if it was fulfilling a legitimate purpose. It was not unfairly enlarging any rights which a judgment creditor had, nor did it involve an overreaching of powers as it sought to do no more than entitle the plaintiff to take action to enforce its judgment. The newly-issued warrant of possession had the same practical effect as the warrant with the appellation "warrant of restitution" or "warrant of restoration." The court's decision provided a practical solution for practitioners and those administering process in the court.

Orders