New South Wales Consolidated Acts

LANDLORD AND TENANT ACT 1899 - SECT 23

23 Possession of tenements may be recovered before Magistrate

(1) When the term or interest of the tenant of any land held by him or her for any term of years, or for any less estate or interest, either with or without being liable to the payment of any rent, has expired by effluxion of time or has been determined by notice to quit or demand of possession, and such tenant or any person claiming under him or her who is actually occupying such land or any part thereof neglects to quit and deliver up possession of such land or of such part thereof respectively, the landlord of such land or his or her agent may exhibit his or her information before any registrar of the Local Court, who shall thereupon issue a summons, and if required so to do a duplicate thereof, under his or her hand against the person so neglecting to quit and deliver up possession, requiring such person to appear before the Local Court to show cause why such landlord should not be put into possession of such land.

(2) If at the time and place appointed in and by such summons, or at any adjournment thereof (whether the tenant or occupier appears or not), such landlord or such agent gives due proof according to law to the satisfaction of the Local Court of the holding and of the expiration or determination in manner aforesaid of the tenancy, and that such landlord then has and had at the time of the service of the summons upon the tenant or occupier lawful right as against such tenant or occupier to the possession of such land, and that the tenant or occupier against whom such summons is issued was the tenant in possession or the actual occupier of such land at the time of the service of such summons, then (upon proof of the service of the summons in case the tenant or occupier does not appear) the Local Court, unless reasonable cause is shown or appears to it to the contrary, may:

(a) adjudge the landlord by or for or on whose behalf such information shall be exhibited entitled to possession of such land, and

(b) award to the said landlord or to such agent by whom such information is exhibited his or her costs to be assessed by the Local Court, and

(c) issue a warrant directed to the constables and peace officers of or acting in or for the district or place within which such land is situate, or to any of them, or to any other person as a special bailiff in that behalf, requiring and authorising them or him or her, within a period to be therein named, not less than ten nor more than thirty clear days from the date of such warrant, to enter (by force if needful) into such land and to give possession of the same to such landlord or such agent on his or her behalf, and such warrant shall be a sufficient authority to such constables, peace officers, or bailiff to enter upon such land with such assistants as they or he or she may deem necessary, and to give possession accordingly:
Provided that where the date of such warrant is later than the twenty-eighth day of February, one thousand nine hundred and fifty-five, the warrant shall not be executed earlier than five clear days from the date on which the warrant is actually delivered to any constable or peace officer of or acting in and for the district or place within which such land is situate or to any other person as a special bailiff in that behalf.

(3) No entry upon any such warrant shall be made on a Sunday, Good Friday, or Christmas Day, or at any time, except between the hours of nine of the clock in the morning and four of the clock in the afternoon.

(4) If such landlord or agent fails to appear or to give such proofs as aforesaid at the time and place aforesaid, the Local Court may dismiss his or her information, and award to the person against whom such information is exhibited, his or her costs to be assessed by the Local Court.

(5) All costs awarded under the provisions hereof, together with the reasonable charges of taking and keeping the distress, shall be recoverable by distress and sale of the goods and chattels of the person adjudged or ordered to pay the same.

(6) The proceedings upon the hearing of the matter of any such information as aforesaid shall be conducted as near as may be in accordance with the proceedings upon the trial of an issue of fact in the Supreme Court, and the parties to such information shall have the like right of addressing the Court as well in reply as otherwise as the parties upon the trial of any such issue of fact in the Supreme Court would have or be entitled to.
Such right may be exercised by themselves, their counsel, or attorneys, or if the Local Court thinks fit, by their agents.