Grant v Baulkham Hills Shire Council [2001] NSWCA 107

New South Wales Court of Appeal

CITATION : Grant v Baulkham Hills Shire Council [2001] NSWCA 107 FILE NUMBER(S) : CA 40127/00 HEARING DATE(S) : 9 & 11 April 2001 JUDGMENT DATE : 11 April 2001

PARTIES : Nerez Gwynneth Grant - Opponent Baulkham Hills Shire Council - Claimant JUDGMENT OF : Giles JA at 1

LOWER COURT JURISDICTION : Supreme Court - Equity Division LOWER COURT ED 1520/9 FILE NUMBER(S) : LOWER COURT Windeyer J JUDICIAL OFFICER :

COUNSEL : Ms Grant in person - Opponent C M Simpson - Claimant SOLICITORS : Ms Grant in person Abbott Tout, Parramatta - Claimant CATCHWORDS : DISCHARGE OF STAY OF EXECUTION - appeal in which stay granted discontinued - no extant proceedings to overcome order at first instance, or to challenge basis of discontinuance - stay discharged. ND DECISION : Order made discharging stay granted on 10 April 2000 but providing for any writ of possession issued by the Council to lie in the office until the expiry of a period of two months from today. Orders made according to short minutes.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40127/00

GILES JA

Wednesday 11 April 2001 NEREZ GWYNNETH GRANT v BAULKHAM HILLS SHIRE COUNCIL JUDGMENT

1 HIS HONOUR: This matter came before me, sitting as a single judge exercising the powers of the Court of Appeal, on 9 April 2001, on an application by Baulkham Hills Shire Council ("the Council") for an order that an order made on 10 April 2000 be discharged. The order made on 10 April 2000, as it happens by myself, was an order staying execution of on order for possession made on 11 February 2000 in respect of the property "Berkeley", River Road, Lower Portland, on certain terms. The application on 9 April 2001 expanded a little into some other matters, and in order to understand the application and the other matters some history is necessary. 2 The Council claimed possession of the property from Miss Nerez Grant, who had occupied it for some time. Windeyer J heard the proceedings, and made the order for possession on 11 February 2000. His Honour also ordered that Miss Grant pay the Council's costs of the proceedings. 3 Miss Grant appealed, and applied for a stay of "the Judgment of 11 February 2000." That application came before me. The issues litigated before Windeyer J had not included whether Miss Grant had a possessory title to the property. I stayed execution of the order for possession made by his Honour, so that she might have the opportunity to overcome the effect of his Honour's decision by bringing separate proceedings to establish a possessory title. The terms to which I earlier referred on which the order was made were directed to the prompt commencement and prosecution of the separate proceedings. No application was made for a stay in relation to Windeyer J's order for costs, the debate being only in relation to his Honour's order for possession. 4 Miss Grant did bring separate proceedings to establish a possessory title. The Council had foreshadowed that, apart from any other matter of defence, the further proceedings to be brought by Miss Grant would be opposed on principles of Anshun estoppel, that being noted at the time I granted the stay. I have not seen either the originating process or any other papers in the separate proceedings brought by Miss Grant, or the Master's reasons, but the evidence before me is that those proceedings were dismissed by Master McLaughlin on 20 February 2001, and Mr Simpson, who appears before me for the Council, has informed me that the Master dismissed the proceedings on principles of Anshun estoppel. Miss Grant has informed me, and this also appears in a chronology in evidence, that she has appealed from the Master's decision. 5 In the meantime the Council moved to have assessed the costs to which it was entitled under the order for costs made by Windeyer J, and brought proceedings in the Federal Court as creditor for the amount of the costs to bankrupt Miss Grant. On 5 March 2001 a Registrar made a sequestration order against Miss Grant's estate. On 14 March 2001, after the date of the sequestration order, Miss Grant filed her appeal against the decision of Master McLaughlin. 6 The precise form of her appeal, whether an appeal purportedly as of right or a summons for leave to appeal, is not clear but it does not matter. Miss Grant has informed me that as at 14 March 2001 she was unaware that she had been made bankrupt, which I record although I do not think it makes any difference to the position in law. 7 The position in law was that Miss Grant's trustee in bankruptcy had to decide whether or not to maintain her appeal against the decision of Windeyer J, and that her appeal, as I will call it, from the decision of Master McLaughlin was incompetent because Miss Grant had been made bankrupt on 5 March 2001. The trustee filed a notice of discontinuance of the appeal from the decision of Windeyer J on 30 March 2001. 8 Miss Grant applied to the Federal Court for orders in substance setting aside or staying the sequestration order made against her. When the Council's application first came before me on 9 April 2001, that application was to be heard on 10 April 2001, and I adjourned the application part heard until today in order that the result of Miss Grant's application might be known. Miss Grant's application was dismissed. 9 Thus the position is this. The appeal in which I granted the stay of the order for possession made by Windeyer J is no longer on foot. It has been discontinued. That of itself would prima facie call for discharge of the stay granted on 10 April 2000. Further, the opportunity for Miss Grant to overcome the effect of Windeyer J's decision has evaporated, the separate proceedings she brought having been dismissed and there being no valid appeal in relation to the decision of the Master. Finally, Miss Grant's application to have set aside or stayed the sequestration order, which is the foundation for the discontinuance of her appeal from the decision of Windeyer J and for there being no valid appeal from the decision of the Master, has been dismissed. Her bankruptcy remains in force without a pending review of the Registrar's order in the Federal Court. 10 In those circumstances it seems to me that there is no reason to depart from the prima facie course to which I earlier referred, and that the stay granted on 10 April 2000 should be discharged. 11 One additional matter, then, was that Miss Grant invited me now to make an order staying execution of the order for costs made by Windeyer J. 12 I am not sure that I can now do that, given what has happened since the order was made, but even if I could I would not do so. The time for applying for such an order was 10 April 2000, and in my view it would be an erroneous exercise of discretion if, after what has happened since, an order staying execution of the order for costs were to be made. Further, I cannot see sufficient grounds for making such an order. The stay granted on 10 April 2000 was not because of perceived flaws in the decision of Windeyer J, but to enable Miss Grant to endeavour to overcome the effect of his decision in another way. If she had been able to overcome the effect of his decision by the separate proceedings to establish a possessory title, the order for costs made by Windeyer J would not have been affected. That was an order for costs in the proceedings before him in which, on the issues presented, Miss Grant fought and lost. If she had been able to overcome the effect of his Honour's decision by the separate proceedings, it would remain that she had fought and lost on the issues presented in the proceedings before his Honour, and the order for costs should stand. 13 The other additional matter was that Miss Grant asked that time be given for her to vacate the property, and that the time be six months. 14 Windeyer J had said that, as Miss Grant had been in possession since 1983 and the land was obviously not required for vehicular or public traffic, he considered Miss Grant should be given a period of up to two months in which to vacate. I indicated a preparedness to adopt the same period simply because his Honour had considered it appropriate, but Miss Grant sought the longer period. That led to evidence and submissions, and because the question of time to vacate was being agitated afresh it also meant that Miss Grant was in peril that I might consider that the appropriate period was less than the two months which Windeyer J had favoured. 15 The reasons for the six months emerging from Miss Grant's evidence and submissions were essentially three: first, the difficulty of moving her furniture and other items from the property; secondly, that she hoped that given some time she might be able to earn money from a particular field of endeavour, which she described, which would let her pay off her creditors and (in a manner not necessarily thought through) end up still able to occupy the property; thirdly, the effect on herself and her daughter of having to leave a property which they had enjoyed for very many years. 16 I do not think there is very much in the first point. From the description of the furnishings and other items it would be necessary for someone to be engaged by Miss Grant to carry out at least some of the moving, and I can see no reason why she could not physically vacate the property within a matter of weeks. Given other evidence indicating her lifestyle I do not accept that she would be unable to pay for moving. 17 Nor does the second matter to my mind carry much weight. I regard it as pie in the sky. 18 As to the third matter, Miss Grant professed a deep attachment to the property. It seems to me that that is something which I should accept, although not to the extent which Miss Grant sought to convey. It remains the case that Miss Grant had been in possession for a long time, and no reason was provided by the Council for immediate taking of possession. In those circumstances I consider that the period of two months which found favour with Windeyer J, while perhaps on the long side, properly reflects a just balance between the Council's entitlement to possession of the property and the physical, but more particularly emotional, impact of Miss Grant having to give up possession of the property. 19 I therefore propose to make an order discharging the stay granted on 10 April 2000, but providing for any writ of possession issued by the Council to lie in the office until the expiry of a period of two months from today.