Kingsley Securities Pty Ltd v Weng

I am dealing with an application for leave to issue a writ of restitution in respect of real property situated at XXXXXXX XXXXXX, Homebush West. Ms Daniels of counsel appears for the plaintiff, the applicant for the writ. There is no appearance for either defendant today. I am satisfied that both defendants have received proper notice of the application and of today's hearing day. I have formed that view on the basis of the second affidavit of Bilal Malick, solicitor, sworn 6 September 2023. I am satisfied from that affidavit, first, that both defendants continue to reside at the property and that the notice of motion and affidavit in support were served on the defendants on 18 August 2023 at their known email address; and secondly, after the Registrar fixed today’s hearing on 23 August 2023 the plaintiff's solicitor advised the defendants of the orders by email on that day. It is quite apparent to me from annexure BHM-3 to the affidavit that commercial agents, acting on behalf of the plaintiff, attended the property on 29 August 2023 and were able to ascertain that the defendants continued to occupy the premises. At the commencement of the hearing, in accordance with the normal practice, the name of each defendant was called outside the court thrice and there was no appearance by either of them.

The proceedings in this Court were proceedings by the plaintiff lender against the defendants, who had guaranteed a loan to a corporate entity controlled by one or other of them. They had provided the premises as security for their guarantee and for the loan by way of mortgage. There was a default by the borrower and proceedings were commenced on 27 January 2022 seeking, inter alia, judgment for possession. The defendants did not file a defence and on 31 May 2022 default judgment for possession was regularly obtained in accordance with the Rules. A writ of possession issued on 9 August 2022 and execution of that writ was affected by the Sheriff on behalf of the plaintiffs on 9 November 2022. On 16 November 2022, the defendants brought their own motion before Rothman J sitting as duty judge, seeking to go back into possession of the premises on the basis that refinancing was imminent. On that basis his Honour made orders permitting the defendants to go back into possession but for a limited period ending on 2 December 2022. The form of the orders that his Honour made relevantly, were as follows:

It is apparent that his Honour extended those orders from time to time until 16 February 2023 when it became apparent that the anticipated refinancing was not going to occur, and the defendants remained in occupation. His Honour dismissed their notice of motion of 16 November 2022, made consequential orders and granted leave to the plaintiff forthwith to move for a writ of restitution. That is the application that is before me today.

I have been assisted in my consideration of the matter by Ms Daniels' written submissions, which set out the principles clearly which are derived from the decision of Davies J in Capital Access Pty Ltd v Charnwood Constructions Pty Ltd [2022] NSWSC 1185 at [14]-[20]. It is unnecessary for me to restate what his Honour has so succinctly and clearly explained in that judgment. I will simply say that a writ of restitution is regarded as a writ in aid of a previous execution.

Under r 39.1 of the Uniform Civil Procedure Rules 2005 (NSW) a writ in aid of another writ of execution may not be issued except by leave of the Court. The reasons why leave is required are fully explained in Davies J’s historical analysis of the authorities relevant to the question. Perhaps it is sufficient for me to refer, as his Honour did also, to the judgment of Simon Brown J in Wilkshire County Council v Frazer (1985) 52 P&C R 46. His Lordship said (at p 50):

From Davies J's analysis of the principles, it is quite clear to me that the defendants have been trespassing on the property since at least the orders made on 16 February 2023. I am satisfied there is “a plain and sufficient nexus” between that trespass and the original recovery of possession. After all, the defendants were permitted to go into possession for a limited time only upon their expectation, of which the Court was persuaded, that they would soon be in a position to refinance the loan and pay out the plaintiff. That has not occurred. Nor have they in accordance with the orders made permitting their re-entry re-surrendered possession to the plaintiff.

I am satisfied there has been no repayment of the debt. I am satisfied, to adopt Davies J's language from Capital Access Pty Ltd v Charnwood Constructions Pty Ltd, "[t]here is a clear nexus between the writ that was previously executed and [the] writ of execution which will now be issued to recover the same possession."

For these reasons I make the following order: