Capital Access Pty Ltd v Charnwood Constructions Pty Ltd [2022] NSWSC 1185

Supreme Court New South Wales

Medium Neutral Citation: Capital Access Pty Ltd v Charnwood Constructions Pty Ltd [2022] NSWSC 1185 Hearing dates: 26 August 2022 Date of orders: 26 August 2022 Decision date: 06 September 2022 Jurisdiction: Common Law Before: Davies J Decision: Leave for the issue of a writ of restitution to restore to the Plaintiff possession of the land comprised in folio identifier 36/8011 of the Register known as 184 Carrington Avenue, Hurstville NSW 2220. Catchwords: JUDGMENTS AND ORDERS – enforcement – writs of restitution – when available - where writ of possession issued to plaintiff – plaintiff agreed to postpone execution of writ for six-week period to allow third defendant to refinance debt – no contact made with sheriff and writ executed – third defendant subsequently permitted to re-occupy the property – where third defendant did not repay debt by agreed date and did not deliver up possession of the property – whether plaintiff should be granted leave for issue of a writ of restitution – where third defendant did not trespass to regain possession – whether sufficient nexus between original recovery of possession and need to effect further recovery of same land – clear nexus – writ of restitution granted to plaintiff to recover the same possession Legislation Cited: Civil Procedure Act 2005 (NSW) ss 13, 56 Uniform Civil Procedure Rules 2005 (NSW) r 39.1 Cases Cited: Abram v National Australia Bank Ltd (Unreported, 1 May 1997, NSWCA) Alliance Building Society v Austin [1951] 2 All ER 1068 at 1070; 2 TLR 1231 Doe, on Demise of Pate v Roe (1807) 1 Taunt 55 Haniotis v Dimitriou [1983] VR 498 Lacon v de Groat (1894) 10 TLR 24; [1894] 1 WLUK 11 Maher v Commonwealth Bank of Australia & Ors (No 2) [2004] FCA 1398; (2004) 211 ALR 656 Perpetual Limited v Kelso [2008] NSWSC 906 Wilkshire County Council & Ors v Frazer (1985) 52 P&C R 46 Texts Cited: Nil Category: Procedural rulings Parties: Capital Access Pty Ltd (Plaintiff) Charnwood Constrictions Pty Ltd (First Defendant) Ayman Elgammal (Second Defendant) Ahmed Elgammal (Third Defendant) Representation: Counsel: D Helvadjian (Plaintiff) No appearances (First, Second and Third Defendants)