Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Carver (Stay) [2024] NSWSC 572 Hearing dates: 13 May 2024 Date of orders: 13 May 2024 Decision date: 13 May 2024 Jurisdiction: Equity Before: Hammerschlag CJ in Eq Decision: Stay refused with costs Catchwords: PRATICE AND PROCEDURE – Inherent jurisdiction of the Court to stay execution of a writ for possession on grounds of hardship – Where the applicant is in unlawful occupation of crown land and has been so for years – Where judgment for possession was given by this Court on 14 July 2023 and affirmed by the Court of Appeal on 6 February 2024 – Where the applicant has had every opportunity to vacate but has taken no steps to do so – HELD: Hardship not established but any hardship has been caused by the applicant himself and he should not be entitled to take advantage of his own wrong Cases Cited: Carver v State of New South Wales [2023] NSWCA 223 Carver v State of New South Wales [2024] NSWCA 10 State of New South Wales v Carver [2023] NSWSC 828 Category: Procedural rulings Parties: State of New South Wales (Plaintiff/Respondent) Peter Carver (Defendant/Applicant) Representation: Counsel: I King (Plaintiff/Respondent) G Foster (Defendant/Applicant) Solicitors: File Number(s): 2021/000364911 Publication restriction: Nil EX TEMPORE JUDGMENT (REvised) 1. The Applicant (Carver) is a solicitor of this Court. He is, and for years has been, in unlawful occupation of Crown land on the southern bank of the Georges River at Illawong, upon which stands a dilapidated cottage, which has been described as 'Cottage H' (the Cottage). 2. On 14 July 2023, after a two day contest in which Carver was represented by counsel, I gave judgment for possession of the Cottage in favour of the Respondent, the State of New South Wales, and gave leave to it to issue a writ of possession forthwith, but ordered that the writ lie in the Registry for not less than 42 days: State of New South Wales v Carver [2023] NSWSC 828 (the first instance judgment). Definitions in the first instance judgment are used here. 3. An order that a writ for possession must lie in the Registry for a period is made to permit the occupier sufficient time to make the necessary arrangements to surrender up possession. 4. Carver appealed the first instance judgment. He applied to the Court of Appeal for a stay of enforcement of the first instance judgment pending the determination of his appeal. Gleeson JA acceded to the application: Carver v State of New South Wales [2023] NSWCA 223. 5. The appeal was heard on 14 November 2023 and dismissed by the Court of Appeal on 6 February 2024: Carver v State of New South Wales [2024] NSWCA 10 (the appeal judgment). No application to the High Court for special leave to appeal was made. 6. The Court of Appeal varied the order that the writ of possession lie in the Registry for not less than 42 days from the first instance judgment, to require it to lie in the Registry for not less than 42 days from the appeal judgment. Those 42 days expired on 19 March 2024. 7. A writ of possession was issued on 17 April 2024 (the writ) and served personally on Carver on that date. Simultaneously, he was given notice that the Sheriff intended to execute it this Friday 17 May 2024. 8. On 20 February 2024, the Sutherland Shire Council resolved that the Cottage be demolished. 9. On 15 April 2024, the Cottage was broken into and damage caused. Carver describes the break-in as vicious and aggressive. 10. On 3 May 2024, the Department wrote to Carver responding to a request he had made to continue occupying the Cottage after 17 May 2024. The Department refused his request for a number of reasons including that some of the cottages approved for demolition pose a substantial ongoing risk to public safety and the environment due to their advanced dilapidation. The Department referred to the break-in, and to bushfire risk, flood risk, the failure of the Cottage to comply with current construction standards, and the presence of asbestos. In the letter, the Department says that it is instructed that accommodation will be made available to Carver if he is evicted from the Cottage. This is a reference to the fact that the Department has resources to provide temporary accommodation support, a Rentstart bond loan and low-cost accommodation. Either way, in the circumstances of this case, such a commitment is not ungenerous. 11. On Friday next, 308 days will have passed from the date of the first instance judgment and 101 days will have passed since the appeal judgment. As the first instance judgment reveals at [38], the Department wrote to Carver requiring him to vacate by 31 September 2020, that is, some three and a half years ago. 12. On 8 May 2024, Carver approached Richmond J, sitting as Equity Duty Judge, for leave to file and serve a Notice of Motion seeking an order staying execution and enforcement of the writ for a period of no less than six months or until further order, and that the State of New South Wales be precluded from instructing the Sheriff to execute the writ until further order. Richmond J referred the matter to me today. A stay "until further order" was abandoned during the hearing of the application. 13. The Motion is supported by two Affidavits by Carver, one sworn on 7 May 2024 and the other on 12 May 2024. 14. The application seeks, it seems, to invoke the inherent jurisdiction of the Court, in its discretion, to stay the execution of a writ of possession on the grounds of hardship. 15. Carver is 74 years old, and he says he has health problems including a heart condition. He has been attempting to secure public housing since last year (not long before the hearing before me, perhaps in anticipation of an unfavourable result). According to the material in evidence, to begin with, at least, he did not provide information required by the Department, now described as Housing Pathways, to enable his application to be processed. However, perhaps after the intervention of his parliamentary representative, he was informed on 10 May 2024 that his application for social housing has been approved for priority listing. He was informed that, when it is his turn to receive an offer of housing, his circumstances will be reviewed to make sure he is still eligible and then an offer for a suitable property for his household would be made. 16. The Department informed him that, in the meantime, he may need to look at resolving his housing need in the private sector while he awaits an offer and that he could make contact with the authorities to access temporary accommodation. 17. Carver has accumulated a substantial amount of personal chattels at the Cottage, which he says is difficult to remove. He says, however, that he has secured two shipping containers and is in the process of packing his belongings, which will take further time. He also wishes to remove fixtures which he has installed over the years and will not be able to do this by 17 May 2024. Photographs of the inside of the Cottage are in evidence. I asked Counsel appearing for Carver how long it would take for him to vacate. He gave the unrealistic response of six months (departing from an earlier statement that it would take two months). 18. Carver says he currently practises as a solicitor from the Cottage, and that he had hoped to retire this year, but his circumstances may prevent him from doing so, being engaged in a lot of pro bono work. 19. He has no spouse. He has two sons, one of whom is a solicitor. He says that neither has space to put him up and he has no other friends or relatives who can help. He says he has minimal income from his practice and relies on a disability pension from Centrelink. He says it is his intention to comply with the orders of the Court of Appeal and depart the Cottage as soon as he can find alternative satisfactory and continuing accommodation either through the Department or privately. This is more properly characterised as an intention not to comply with the orders unless he finds alternative accommodation, but leaving that aside, counsel for Carver put from the Bar table that Carver considers the cottage to be safe, that there is no urgency for demolition and the State of New South Wales took years to evict him. 20. I have concluded that such discretion as the Court has, to grant a stay should not be exercised in Carver's favour, for the following reasons, each of which, I consider on its own is sufficient reason to withhold the exercise of that discretion in his favour. Their cumulative effect compels it: 1. to the extent that there will be hardship in the execution of the writ, it is hardship which Carver has entirely wreaked upon himself by his obdurate persistent refusal to vacate a property which he has unlawfully occupied for years without paying rent. It does not assist him that he is a solicitor and an officer of this Court; 2. he has known since the appeal judgment that he must leave; 3. his continuing to live in the Cottage poses a health hazard to himself and the public. The non-availability of public housing does nothing to assuage this risk. I do not share Carver's view that the premises are safe. I infer that they are even less safe since the break-in and damage; 4. there is a public interest to be served in him leaving because the land is public land. He has no right to occupy it to the exclusion of the public. The State of New South Wales wishes to return it to being parkland; 5. Carver provides no detail of his assets or information relating to his sons and their capability, if any, financially to assist their father; 6. so far as his chattels are concerned, the execution of the writ will assist, at least to the extent that the Sheriff will remove his chattels and is likely to place them in the shipping containers standing at the Cottage. Plainly, he is not in a physical state to remove the fixtures (whatever they may be worth) but he has had every opportunity to retain a tradesman to do this. According to counsel (from the Bar table), Carver has taken no steps in that direction; and 7. finally, as the Department has notified him, alternative accommodation will in the event of his eviction, be available. 1. Despite the lack of merit of the application, I nevertheless had it in mind that if Carver gave to the Court an undertaking to vacate the Cottage within a short time after 17 May 2024, I might grant a short stay. But Carver eschewed this possibility, maintaining that he would only give an undertaking to vacate in six months' time because he wants to finish off legal matters which he still has in hand, he wants time to fully empty the Cottage and remove the kitchen, and he cannot afford to pay the costs of moving the containers to Mudgee, where he proposes to store them. I was informed from the Bar table that, for all these endeavours, he will be reliant on his sons and friends. 2. Finally, I observe that he complains of hardship because he has been in the Cottage for 28 years and has accumulated chattels there and spent money on it, and must now leave. This complaint is not legitimate. He must have known all along that he was not entitled to be there. He should not be permitted to take advantage of his own wrong. 3. The motion is dismissed. 4. The applicant is to pay the respondent's costs of the application. ********** 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: 14 May 2024