Khanna v Sabi Foods International (Aust) Pty Limited and Anor

JOHNSON J: On 8 May 2017, I heard and determined (as Duty Judge) a Notice of Motion brought by the Applicants, Sabi Foods International (Aust) Pty Limited and Uvaraja Hariramakrishnan, seeking an order under s.135 Civil Procedure Act 2005 authorising the Sheriff to enter the premises of the Respondent, Sanjeev Khanna, for the purpose of taking possession of goods under a writ for levy of property: Khanna v Sabi Foods International (Aust) Pty Limited and Anor [2017] NSWSC 573.

The background to that application and my reasons for making orders were contained in my judgment of 8 May 2017.

It is sufficient to note that a writ for levy of property was issued following application made by the Applicants on 8 December 2016. On 16 December 2016, the Sheriff attempted, unsuccessfully, to execute the writ at the Respondent’s premises at 1 Hambro Avenue, Glenwood (“the Glenwood premises”). The Respondent was present at the Glenwood premises on that day but, according to the Sheriff’s report, he refused entry to the Sheriff’s Officer and compelled the Officer to leave the Glenwood property. On 8 May 2017, I expressed my satisfaction that the requirements of Rule 39.52 Uniform Civil Procedure Rules 2005 had been established so as to justify the making of an order under s.135 Civil Procedure Act 2005.

The orders made on 8 May 2017 were as follows:

The s.135 order was made in the terms sought by the Applicants in their Notice of Motion dated 20 April 2017.

On 4 September 2017, the solicitor for the Applicants, contacted my Associate for the purpose of seeking additional orders to permit the order made on 8 May 2017 to be put into effect. I made orders in Chambers directing the Applicants to furnish a written submission in support of that application. The Respondent was permitted an opportunity to respond to the application by 18 September 2017 by way of a written submission.

The Applicants’ submission revealed that following communications between the solicitors for the Applicants and the Sheriff, more detailed orders were needed to allow the Sheriff to execute the order made on 8 May 2017.

The Applicants seek additional orders along the following lines to permit the Sheriff to execute the original s.135 order:

The submission of the Applicants, and the associated documentation provided with the submission, demonstrates a proper basis for the Court to expand the terms of its order so as to allow the s.135 order made on 8 May 2017 to be implemented on behalf of the Applicants. If the original Notice of Motion had contained a claim for orders of the type now sought, the Court would have made those orders as well on 8 May 2017.

The nature of the present application is procedural. It does not alter the substance of the application made to the Court on 8 May 2017 nor the relief which the Court determined to grant on that day. The additional orders sought are consequential procedural steps which I am satisfied are necessary to implement the Court’s order.

The submission and accompanying material furnished by the Respondent to the Court on 18 and 19 September 2017 appears to re-agitate some of the matters determined by the Court on 8 May 2017. The Respondent’s submission does not contain any arguable foundation for the Court to decline to make the further procedural orders sought by the Applicants.

With some modification of language, I propose to make orders along the lines of those sought by the Applicants.

The Court notes the orders made on 8 May 2017 under s.135 Civil Procedure Act 2005 and as to costs.

In addition to the orders made on 8 May 2017, the Court makes the following further orders:

The solicitors for the Applicant should ensure that the Sheriff is provided with copies of my judgment of 8 May 2017 and the present judgment.