State of New South Wales v Carver (Stay)

The case involved the State of New South Wales against a Mr Carver, who had been in unlawful occupation of crown land for several years. After a judgment for possession was granted by the court on 14 July 2023 and subsequently affirmed by the Court of Appeal on 6 February 2024, the matter returned to the court for a decision on whether to stay the execution of the writ for possession on the grounds of hardship. Despite having ample opportunity to vacate the land, Mr Carver had not taken any steps to do so.

The primary legal issue before the court was whether the inherent jurisdiction of the court could be exercised to stay the execution of the writ for possession, given that Mr Carver was in unlawful occupation and had failed to vacate the premises despite being given every opportunity to do so. The court needed to determine whether Mr Carver's situation constituted sufficient hardship to warrant a stay, and if so, whether he was entitled to benefit from his own wrong.

The court found that although Mr Carver's situation might be considered difficult, any hardship he was experiencing was self-inflicted. The court emphasised that the applicant had been in unlawful occupation for years and had not taken any steps to vacate despite being given ample opportunity. The court ruled that the hardship was not sufficient to warrant a stay of the writ for possession, and that Mr Carver should not be allowed to benefit from his own wrong. Therefore, the application for a stay was dismissed.

The court's final order was that the writ for possession should proceed as scheduled, and Mr Carver was directed to vacate the crown land immediately. The court made it clear that Mr Carver's failure to vacate the premises despite numerous opportunities was a significant factor in denying the stay.