GEORGE LEWIS aka GEORGE LEOUD v BRESSEN (RURAL) HOLDINGS PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY JA 9 October 1989 [1989] NSWCA 133 Mahoney JA This matter comes before the court upon a motion for a stay of execution of a warrant which apparently has been issued for enforcement of a judgment against the applicant, Mr Lewis. He was the defendant in proceedings below. It does not appear strictly from the material before the court but the court has been informed by Mr Miller, for the respondent plaintiff company, that the position is that a judgment was given by Master Sharpe for possession of the premises in a proceeding against Mr Lewis. There was then an application by Mr Lewis for relief against the forfeiture of the lease of the relevant premises which apparently he had held. Mr Miller informs the court that on 28 July 1989 relief against forfeiture was refused by his Honour Grove J. He also informs the court that a writ for possession was taken out on 21 August 1989, that an appeal was lodged on 24 August 1989 and that a motion for stay of the execution of the writ for possession, the present motion, was filed on or about 14 September 1989 returnable first on 25 September 1989. The appeal was lodged on 24 August 1989, that is, after the writ or warrant for possession was issued. Mr Miller also informs the court that possession was obtained as the result of that execution of writ or warrant on or about 2 October 1989. Mr Lewis therefore is no longer in possession. The material placed before the court on behalf of Mr Lewis was filed in the court by MD Nicholaidis and Co, who were then apparently retained by him. They have not appeared on his behalf today. Mr Miller has indicated to the court that he has been informed informally by counsel previously appearing for Mr Lewis that - and I paraphrase what he has said - the solicitors and counsel will not be appearing because their fees have not been paid. Mr Lewis has said that arnounts of money have been paid from time to time and has given some explanation of the matter, but the fact is that there has been no appearance. I have asked Mr Lewis whether he desired to request an adjournment or to have the matter proceed, and he indicated that he desired the matter to proceed. I have indicated to him the difficulties that are involved in this. The evidence which is before the court is contained in dn affidavit of Mr Lewis of 13 September 1989, and an affidavit of Peter Krisik also of 13 September 1989. Those matters do not appear to provide any basis requiring that the writ of execution be not executed and I note that no application was made for stay of it while the motion was pending. (The relevance of that is a matter that I do not have to finally assess). I do not think that the evidence set forth in the two affidavits would, standing alone, warrant staying the execution of the writ. The notice of appeal shows that the grounds of appeal are essentially that Mr Lewis was entitled to relief against forfeiture of the lease in question. The notice of appeal is not forthcoming in relation to particulars; the grounds are not stated with particularity. In the circumstances, I do not think that a case has been made 2 UNREPORTED JUDGMENTS out for a stay of the execution of the writ or warrant. I say that recognising that the warrant has already been executed but upon the basis that if a proper case had been made out for the stay, the court would be entitled or at least might be entitled to order that the execution which has already taken place be set aside. In these circumstances, I order that the notice of motion for stay be dismissed with costs. In the circumstances, I order that there be liberty to apply to the court on an application for stay of execution without fourteen days from this date should the plaintiff be so advised. Mr Lewis, if you want a note of what has been said, you are entitled to apply to the Court Reporting Branch for a transcript of today's proceedings.