Benjamin v Blundell [2010] NSWSC 31 (4 February 2010)

Last Updated: 9 February 2010

NEW SOUTH WALES SUPREME COURT

CITATION:
Benjamin v Blundell [2010] NSWSC 31


JURISDICTION:
Equity

FILE NUMBER(S):
2009/00291383-1

HEARING DATE(S):
2, 4 February 2010


EX TEMPORE DATE:
4 February 2010

PARTIES:
Victor Hyman Benjamin (First Plaintiff)
Janet Shirley Fingret (Second Plaintiff)
V H Benjamin & Sons Pty Ltd (Third Plaintiff)
Victor Hyman Benjamin (Fourth Plaintiff)
Hamafam Pty Ltd (Fifth Plaintiff)
Melanie Jane Blundell (First Defendant)
Garo Ashikian (Second Defendant)


JUDGMENT OF:
Gzell J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
A Rogers (Plaintiffs)

SOLICITORS:
Baccus Investments Ltd - In house Solicitors (Plaintiffs)


CATCHWORDS:
PROCEDURE - Possession of Property - failures to comply with writ of possession and writ of restitution in Common Law Division proceedings - Crown Solicitor's advice that contempt proceedings inappropriate as writs addressed to Sheriff and not to first defendant - whether order should be made in Equity Division proceedings to vacate property and not to re-enter without permission

LEGISLATION CITED:



CASES CITED:


TEXTS CITED:


DECISION:
Orders made to vacate property and not to re-enter.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION


GZELL J

THURSDAY 4 FEBRUARY 2010

2009/00291383-1 VICTOR HYMAN BENJAMIN & ORS v MELANIE JANE BLUNDELL & ANOR

EX TEMPORE JUDGMENT

1 The plaintiffs in the proceedings before me today seek an order that Melanie Jane Blundell vacate the property known as 660 Menangle Road, Douglas Park, New South Wales.

2 Similar relief is claimed against the second defendant, Garo Ashikian, but the plaintiffs have been unable to effect service upon him.

3 I am satisfied that Ms Blundell was served with this application. When the process server went to serve the documents on her she ran into the house and attempted to close the door. But the process server was able to drop the documents on the floor in the house in her presence at the same time saying: "That is your copy of the amended summons."

4 The matter has had a protracted history. On 22 September 2008, consent orders were filed in this court under which judgment for the plaintiffs for possession of the property was granted, and leave was granted to the plaintiffs to issue a writ of possession.

5 A writ of possession was issued on 14 November 2008. On 26 November 2008 the Sheriff’s Office gave notice to vacate by 12.30 pm on 17 December 2008 or eviction would proceed without further warning.

6 At about 12.15pm on 17 December 2008, Registrar Deacon informed the solicitors for the plaintiffs that the defendants were seeking a stay of execution of the writ. Counsel was retained and appeared before the Registrar who called on the matter at about 12.30pm. At approximately 1.45 pm the Registrar stayed execution of the writ until 12 January 2009, stating that he had no idea whether the Sheriff had executed the writ.

7 The Registrar and counsel were unaware that the Sheriff executed the writ at about 12.30pm on vacant premises.

8 That was to no avail as the defendants broke back into the house and retook possession.

9 On 27 February 2009 Fullerton J ordered that a writ of restitution to the plaintiffs issue forthwith in respect of the property. The writ issued on 2 March 2009 and was forwarded to the Sheriff’s Office.

10 On 18 March 2009 the Sheriff’s Office gave notice to vacate by 10.00am on 15 April 2009 or eviction would proceed without further warning.

11 On 17 April 2009, a report was sent to the plaintiffs by the Sheriff's Office that eviction had been carried out peacefully at about 10.00am on 15 April 2009 and the locks had been changed.

12 Ms Blundell contacted a process server at about 11.45am on the day of the eviction and claimed she had received a stay. She requested that the keys be forwarded to her. She was advised that the writ had already been executed and possession had been given to the plaintiffs.

13 The solicitors for the plaintiffs contacted the Supreme Court on 15 April 2009 and were informed by a clerk that there was nothing on the file to show that a stay had been granted.

14 The solicitors for the plaintiffs contacted the Supreme Court again on 20 April 2009 and were informed that on 15 April 2009 Ms Blundell had sought and was granted a stay of execution of the writ of restitution but the writ had already been executed.

15 Once again, the defendants broke back into the house and retook possession.

16 On 10 June 2009, a notice of motion was filed in related proceedings against the defendants seeking orders that they be punished for contempt of court. On 19 June 2009, Patton AJ stood the notice of motion over to 2 July 2009.

17 On 2 July 2009 Ms Blundell appeared and gave evidence before Simpson J who stood the matter over to 3 July 2009. On that day her Honour stood the matter over into the Registrar's list on 13 July 2009.

18 On 13 July 2009 there was no appearance on behalf of either of the defendants. Kirby J made orders that Ms Blundell be committed to prison for breach of the writ of possession and that she be committed to prison for breach of the writ of restitution. His Honour stayed the orders until 21 July 2009 and stood the matter over. On 21 July 2009 his Honour listed the matter for further argument and suspended the orders until 27 July 2009.

19 On 24 July 2009, the matter was called on before Kirby J. Ms Blundell did not appear. His Honour vacated the orders he had made on 13 July 2009 and stood the matter over before himself on 31 July 2009.

20 On 31 July 2009 there was no appearance by or on behalf of Ms Blundell. Kirby J made orders directing the Registrar to apply by motion for the punishment for contempt of Ms Blundell in respect of the orders made as set out in the plaintiff's notice of motion in the related proceedings of 10 June 2009, par 3 and par 4. His Honour further ordered that within 28 days Ms Blundell file and serve a notice of motion and supporting affidavit if she intended to pursue an application to set aside the settlement of 22 September 2008.

21 Ms Blundell did not commence proceedings to set aside the settlement of 22 September 2008.

22 On 1 September 2009, Registrar Atkinson advised the solicitors for the plaintiffs that the matter had been referred to the Crown Solicitor.

23 The plaintiffs commenced the current proceedings on 20 November 2009.

24 On 25 November 2009, Registrar Atkinson advised the solicitors for the plaintiffs that the Crown Solicitor had advised that it was not appropriate to take contempt proceedings as the writ of possession and the writ of restitution were directed to the Sheriff and not to Ms Blundell.

25 This history of the matter indicates the total disregard with which Ms Blundell has treated judgments and process of this Court. She did not appear when the matter was called on 2 February 2010 and I have dispensed with service of notice of the adjourned hearing today.

26 The order that Ms Blundell vacate the property sought by the plaintiffs is that that be done within 24 hours of service of the order upon her. I do not think 24 hours is a reasonable period in the circumstances and I propose to make an order in terms of par 2 of the amended summons but with the substitution 48 hours for 24 hours.

27 I order that the First Defendant vacate the property described in Folio Identifier 7/246706 and known as 660 Menangle Road, Douglas Park in the State of New South Wales (Property) within 48 hours of service of these orders upon her. I order that the First Defendant not enter thereafter upon the Property save with the written perMsion of the Plaintiffs or the Plaintiffs’ agent. I order that the First Defendant pay the Plaintiffs’ costs of the proceedings. I direct that these orders may be entered forthwith.





LAST UPDATED:
8 February 2010