O.R. Smee Pty Ltd (in liquidation) v Calkin [2023] NSWSC 1306

Supreme Court New South Wales

Medium Neutral Citation: O.R. Smee Pty Ltd (in liquidation) v Calkin [2023] NSWSC 1306 Hearing dates: 31 October 2023 Date of orders: 03 November 2023 Decision date: 03 November 2023 Jurisdiction: Common Law Before: Schmidt AJ Decision: (1) Subject to order 4, the Defendant and any other person in occupation of, or present on, the Property give vacant possession to the Plaintiff immediately. (2) Subject to order 4, the Defendant be restrained from attempting to interfere with the Plaintiff's possession of the Property. (3) Subject to order 4, leave to issue a writ of possession of the Property. (4) Orders 1, 2, and 3 be stayed until 12 am on 1 January 2024. (5) The matter be listed at 9.30 am on 2 February 2024 for the purpose of making directions as to the questions of mesne profits and costs. Catchwords: TORTS — trespass to land — interference with possession – declaration sought that defendant has no right to enter, occupy or remain on land as well as orders for possession and injunction to restrain interference with that possession – where defendant occupied the property for many years with claimed approval of a relative of one of the plaintiff's directors – motor vehicles and farming equipment stored on the property – where both parties accept there is no legal basis for the defendant's continued occupation of the property following appointment of liquidator – orders stayed for an agreed period to allow defendant to vacate goods from the premises Legislation Cited: Civil Procedure Act 2005 (NSW) ss 20, 92, 94, 104 Corporations Act 2001 (Cth) ss 474, 478 Residential Tenancies Act 2010 (NSW) Uncollected Goods Act 1995 (NSW) Pt 3A Uniform Civil Procedure Rules 2005 (NSW) r 6.8 Cases Cited: Break Fast Investments v PCH Melbourne Pty Ltd (2007) 20 VR 311; [2007] VSCA 311 Centrepoint Group Pty Ltd v Dewsbery [2004] TASSC 64 In the matter of Atlas Advisors Australia Pty Ltd [2022] NSWSC 870 Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286; [1974] HCA 18 Plenty v Dillon (1991) 171 CLR 635; [1991] HCA 5 Category: Principal judgment Parties: O.R. Smee Pty Ltd (in liquidation) (Plaintiff) Daryl Calkin (Defendant) Representation: Counsel: Mr N Kabilafkas (Plaintiff)