Permanent Custodians Ltd v Bunn [2008] ACTSC 21 (27 February 2008)

Last Updated: 7 May 2008

PERMANENT CUSTODIANS LTD v PETER CHADLEY BUNN

[2008] ACTSC 21 (27 February 2008)

EX TEMPORE JUDGMENT

No. SC 739 of 2007

Judge: Refshauge J

Supreme Court of the ACT

Date: 27 February 2008

IN THE SUPREME COURT OF THE )

) No. SC 739 of 2007

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: PERMANENT CUSTODIANS LTD

Applicant

AND: PETER CHADLEY BUNN

Defendant

ORDER

Judge: Refshauge J

Date: 27 February 2008

Place: Canberra

THE COURT ORDERS THAT:

1. Upon the applicant, Peter Chadley Bunn, undertaking that he will give access to the enforcement creditor to the premises referred to in the enforcement order of 30 January 2008 for the purposes of

(a) inspecting the property; and

(b) preparing the property for sale

the operation of the enforcement order be stayed for 14 days.

2. The applicant, Peter Chadley Bunn, pay the costs of the application.

1. This application for a stay of an order for delivery of land by the enforcement debtor Peter Chadley Bunn comes before me today for decision.

2. Mr Bunn has sought a stay of the order dated 30 January 2008 for possession of the premises in which he is living for a period of 28 days. The order was made following application for possession made by originating claim dated 19 October 2007, so the enforcement debtor has had at least knowledge that the plaintiff is seeking possession of the premises since that claim was served on him on 25 October 2007.

3. Default judgment in the absence of a defence was granted by the court on 26 November 2007 and on 18 January 2008 the applicant, the enforcement debtor was served with a notice under rule 2452 of the Court Procedures Rules 2006 requiring compliance with the default judgment, and the order for possession was issued on 30 January 2008.

4. This application comes before me under rule 2013 which provides in general terms for an application by an enforcement debtor for an order for a stay. Such an application gives the court power which appears to be untrammelled. In Joskovitz v Bonnick [1964] VR 654, the court comprised of Herring CJ, said at page 656:

There is no question, I think, under that rule that a court or judge has a very wide discretion

In my view that comment is apposite to this rule. His Honour went on at page 659 to say:

As I have said, the discretion under the rule that is vested in the Court has to be exercised in the light of all the circumstances, so it becomes necessary to look at the circumstances in this case rather closely.

5. I have possibly not considered the circumstances in the case as closely as his Honour was suggesting, but it does seem to me in the circumstances set out in Mr Bunn's affidavit where he has no assets, he is a sole parent with two daughters who live with him, and he has at all times remained in contact with the enforcement creditor, that a stay for a reasonable period of time now that Mr Bunn has faced up to this obligations to remove himself from the premises, and to allow the enforcement creditor to move in, is sufficient for me to exercise a jurisdiction under this rule.

6. In Sheffield Corporation v Luxford [1929] 2 KB 180, at page 18, the court says in respect of legislation there under consideration which is in relevant terms similar to rule 2013,

The legislation by its terms contemplates a postponement of the day on which possession is given and it indicates no limit to the period for which it may be postponed.

The court then said:

It is of course to some extent a question of degree, but I think the period must be no more than is reasonably adjusted to the circumstances of the case including the nature of the tenancy, the term ...

(in that case a weekly term)

... and the object which I think the legislature must be taken to have had in this enactment, that is to say to relieve the judge of the necessity of making an order for possession to be given then and there without further warning to the tenant.

7. Although not entirely apposite, I think those comments are of assistance to me in determining this application. In my view the period of 28 days in the circumstances is too long. I think a shorter period is necessary. Mr Bunn tells me from the Bar table that he has arrangements in place which he expects to hear about within 7 days.

8. He needs to use those 7 days to get himself ready to move out and the further 7 days that rather generously, but nevertheless appropriately, I have granted or proposed to grant to him to actually ensure that he moves out.

9. Mr Dearn for the enforcement creditor has said everything that could be said and he has reason, and the proper interests of the enforcement creditor, on his side which he has put ably and forcefully. However, in the circumstances I have agreed to some extension of time, but on conditions that have been sought by Mr Dearn.

10. So I order that upon Mr Bunn giving the court an undertaking that he will give access to the enforcement creditor to the premises for the purpose of

(a) inspecting the property (which should preferably be done in the presence of Mr Bunn, but nevertheless is something that the enforcement creditor may do); and

(b) preparing for the sale of the property,

I stay the operation of the enforcement order of 13 January 2008 for a period of 14 days from today.

I certify that the preceding 10 numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Associate:

Date: 18 March 2008

Counsel for the plaintiff: R Dearn

Solicitor for the plaintiff: Colquhoun Murphy Solicitors

The defendant: Appeared in person

Date of hearing: 27 February 2008

Date of judgment: 27 February 2008