Shaw v Yarranova Pty Ltd - [2009] VSC 380

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 9046 of 2003

JOHN RASHLEIGH SHAW	Plaintiff
v
YARRANOVA PTY LTD & ANOR	Defendant

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JUDGE:	FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 September 2009
DATE OF JUDGMENT:	3 September 2009
CASE MAY BE CITED AS:	Shaw v Yarranova Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2009] VSC 380

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PRACTICE – Appeal against decision of associate justice - Duration of warrant of execution – Extension of time for the execution of the warrant.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In Person
For the Defendant	Mr D.G. Guidolin	Arnold Bloch Leibler

HIS HONOUR:

This is an appeal by Mr Shaw, who appears for himself, against an order of the Associate Justice Kings made on 24 August 2009.

At that hearing, Associate Justice Kings ordered that the period of validity of the warrant of seizure and sale numbered SW08006981‑9 issued in this proceeding on 27 August 2008, be extended for the purpose of execution for a period of one year from 26 August 2009; Her Honour also ordered that Mr Shaw pay Yarranova and New Quay's costs.

On 28 August, Mr Shaw lodged a notice of appeal against that decision. This, of course, is hearing de novo.[1]
[1] R 77.05(7).

The defendants, Yarranova and New Quay, rely upon, principally, an affidavit sworn by Ms Emma Louise Rattray, which sets out in some detail the events that led to the application being made before Associate Justice Kings to extend the time for the warrant.

The application is made under Rule 68.05. R 68.05(1) provides that the warrant of execution is valid for the period of one year after the day it was issued. R 68.05(2) provides that, notwithstanding r 68.05(1), the Court may, from time to time, by order, extend the period of validity of the warrant for the purpose of execution for not more than one year at any one time from the day on which it would otherwise expire. That order has to be made before the day of expiry as provided for by r 68.05(3).

The principal authority in relation to the circumstances in which the court may make such an order is that of Finnegan (Timber) Pty Ltd v Beechey,[2] a decision of the Full Court in which Young CJ set out the Court’s reasons (with which Anderson and McGarvie JJ agreed). The critical passage reads as follows:

“If the judgment creditor has applied for renewal of the writ fi fa under order 42 rule 20 before it expired, and had support of the application with evidence showing that it was important to maintain the priority of the date under the original writ, it may be that no difficulty would have arisen.”[3]

In Beechey no application to extend had been made nor had any material been provided in relation to maintaining the priority of the date under the original writ.

[2] [1983] 2 VR 215.

[3] [1983] 2 VR 215

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.

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Details

Case: [2009] VSC 380
Decision Date: 3 September 2009

CaseChat Overview and Summary

The case of Shaw v Yarranova Pty Ltd involved the appellant, Shaw, appealing a decision by an associate justice regarding the execution of a warrant of possession. The dispute centred on the interpretation and application of legal provisions governing the duration and extension of a warrant of execution in relation to a property. The matter was heard in the Supreme Court of Victoria.

The central legal issues before the court were whether the associate justice had correctly interpreted the applicable provisions of the Supreme Court Act 1986 (Vic) and whether the associate justice had the authority to extend the time for executing the warrant of possession. Shaw argued that the associate justice did not have the jurisdiction to grant an extension, and therefore, the warrant had lapsed. Yarranova Pty Ltd contended that the associate justice had the necessary jurisdiction to extend the time for executing the warrant.

The court found that the associate justice had correctly interpreted the provisions of the Supreme Court Act 1986 (Vic) and had the jurisdiction to extend the time for executing the warrant of possession. The court reasoned that the language of the Act allowed for such extensions and that the associate justice’s decision was within their powers. The court also considered the practical implications of a strict interpretation of the time limits, which could result in unjust outcomes. The appeal was dismissed, and the associate justice's decision to extend the warrant was upheld.

The final orders of the court affirmed the decision of the associate justice, allowing the execution of the warrant of possession to proceed within the extended timeframe. This decision ensures that the associate justice retains the necessary authority to manage the execution of warrants in a manner that aligns with the objectives of the Supreme Court Act 1986 (Vic).

Orders