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) Solicitors: J Biady & Associates Pty Ltd (Plaintiff) Daryl Calkin (Self-Represented) File Number(s): 2023/217672 Publication restriction: Nil JUDGMENT 1. O.R. Smee Pty Ltd (in liquidation) is the registered proprietor of a property located in New South Wales at Castlereagh. By its statement of claim it sought a declaration that Mr Calkin has no right to enter, occupy or remain there; orders that he give it vacant possession of that property and restraining him from attempting to interfere with its possession; leave to issue a writ of possession and an order for damages for trespass. 2. The company claimed that Mr Calkin first occupied the property in 2015 and that he stores goods there without its permission or any lawful entitlement to enter or remain on the property, which he has persistently refused to vacate. These claims were not defended by Mr Calkin, who has not entered an appearance and was not active in the proceedings until he appeared unrepresented at the hearing. 3. There was no issue that Mr Calkin, who does not live on the property, had been served with the statement of claim and supporting affidavits sworn by Mr Parker, the company's liquidator, in July and September 2023, as well as the company's written submissions. Mr Parker had also discussed with him the relief which the company was pursuing. 4. To advance its case the company relied on the law of trespass, given its common law right to exclude others from its land, explained in Plenty v Dillon (1991) 171 CLR 635; [1991] HCA 5 at 639, as well as the regulation of claims for possession of land by the Civil Procedure Act 2005 (NSW) and the Uniform Civil Procedure Rules 2005 (NSW): ss 20, 92, 94, 104 and r 6.8. It relied on Mr Parker's affidavits and the affidavit of service sworn by a licensed process server, Mr O'Connor, in August 2023 to establish its case. 5. On Mr Calkin's case, he had occupied the property for over 18 years, up until the liquidation, with the approval of a relative of one of the company's directors. He gave some short evidence and tendered a statutory declaration made by a former caretaker of the property, about when he came onto the land. He accepted that he now had to vacate, but his position was that he still required further time to finish removing his goods. 6. Terms were then discussed with the result that the orders the Court was finally asked to make were agreed. It is still necessary to explain the basis on which I came to be satisfied that the Court was empowered to make those orders. The evidence 1. Mr Parker's evidence included that when the documents were served on Mr Calkin, he was the only person occupying the property; his review of the company's records had not identified any record or evidence of any licence, tenancy agreement or arrangement which entitled Mr Calkin to occupy the property; that he had spoken to Mr Calkin on a number of occasions about vacating; and that he had never claimed to be entitled to remain in occupation under some legal right. Mr Parker thus believed that Mr Calkin was not in occupation pursuant to any right under a residential tenancy agreement within the meaning of the Residential Tenancies Act 2010 (NSW). 2. Mr Parker had also spoken to Mr Calkin after service of the statement of claim and notice to occupier served in accordance with r 6.8 of the Uniform Civil Procedure Rules 2005 (NSW), but still he continued to store his goods on the property. 3. Mr Parker also explained: * his 10 August 2023 conversation with Mr Calkin, when they had discussed the Court's order that he file his defence by 22 August and that the matter was in the list for further directions on 30 August; that a contract for sale of the property which the company had entered had been rescinded by the purchaser; that Mr Parker was still pursuing a sale and needed Mr Calkin to remove his goods so that it could be sold; * his 30 August conversation with Mr Calkin after the matter was adjourned to 27 September, when he advised Mr Calkin to get legal representation; * letters the company's solicitors had subsequently posted to Mr Calkin; * his 27 September conversation with Mr Calkin about the hearing date fixed; * further letters sent by the company's solicitors about the hearing; and * that Mr Calkin still remained on the property where he continued to keep a large number of items stored, as well as savage guard dogs. Why the agreed orders must be made 1. The orders finally agreed were: 1. A declaration that the Defendant has no present right to enter, occupy, or remain upon the land constituted by folio identifier XXXX, being the land situate at 152-172 Rickards St, Castlereagh in the State of NSW (Property). 2. An order that the Defendant and any other person in occupation of, or present on, the Property give vacant possession to the Plaintiff immediately. 3. An order that the Defendant be restrained from attempting to interfere with the Plaintiff's possession of the Property. 4. Leave to issue a writ of possession of the Property. 5. The matter be listed on a date convenient to the court for the purpose of making directions as to questions of mesne profits and costs. 1. Mr Calkin's case was that he had stored over 240 vehicles on the property, as well as containers containing farming equipment, and that he still needed until the end of the year to remove the remaining 70 vehicles and those containers. But he accepted that he then had no right to occupy the property. In the result it must be accepted that he was a trespasser and the company was entitled to the orders which it pressed, given his failure to vacate, despite Mr Parker's repeated requests over the more than 2 years since he was appointed, that Mr Calkin do so; Mr Parker's statutory obligations under ss 474 and 478 of the Corporations Act 2001 (Cth) to take the property into his control and to apply it to the discharge of the company's liabilities; and the undoubted damage which Mr Calkin's refusal to vacate must have caused, given the resulting inability to sell the property with vacant possession. 2. Mr Calkin did not suggest that an order for damages would be the appropriate order to make against him, given his undoubted trespass. It is only in exceptional cases that an injunction which is warranted on the evidence would be refused, that depending on the defendant establishing matters such as that the injury caused was small; capable of being estimated in money, with such compensation also necessarily being small; and the grant of an injunction involving greatly disproportionate hardship, amounting to oppression, for the defendant: Break Fast Investments v PCH Melbourne Pty Ltd (2007) 20 VR 311; [2007] VSCA 311 at [36]-[47] and [81] (per Dodds-Streeton JA, Ashley JA and Cavanough AJA agreeing). On the evidence, such a case could not be established. 3. On the terms agreed there could in any event be no such finding in this case. Given Mr Calkin's continuing refusal until the final hearing to vacate, despite having no right to remain in occupation, I am well satisfied that justice requires that the injunctive relief then agreed must be granted, in addition to the other orders agreed. 4. The company accepted that those orders being made would have the result that the declaratory relief it had sought was unnecessary: Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286; [1974] HCA 18, discussed by Black J in In the matter of Atlas Advisors Australia Pty Ltd [2022] NSWSC 870 at [5]. A similar approach was taken in Centrepoint Group Pty Ltd v Dewsbery [2004] TASSC 64 at [17]. 5. The company also asked that both its damages claim and costs be reserved for the parties to discuss further, after the property was vacated. It being noted that in the event that the liquidator had to take steps to have any remaining goods removed, that process was regulated by the Uncollected Goods Act 1995 (NSW), which gave the NSW Civil and Administrative Tribunal exclusive jurisdiction to deal with their disposal under Pt 3A. 6. In the result I am satisfied that the evidence I have discussed establishes a proper basis for the grant of the relief which the parties finally agreed. 7. Mr Calkin properly accepted that they were orders to which the company is entitled, he having no legal basis for his continued occupation of its property and it being entitled to relief which not only ensures that he does now vacate, giving it vacant possession, by removing all his remaining goods and that he also does not later seek to re-enter without the company's prior permission. Orders 1. For these reasons I order that: 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. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 November 2023