Scott v O'Riley [2007] NSWSC 192

New South Wales Supreme Court

CITATION : Scott v O'Riley [2007] NSWSC 192 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 02/03/07 JUDGMENT OF : Gzell J

EX TEMPORE JUDGMENT DATE : 2 March 2007

DECISION : Injunction granted. Defendant to pay costs on an indemnity basis.

CATCHWORDS : PROCEDURE - Injunctions - Writ of possession executed and plaintiff put in possession of property - Defendant renters on same day - Whether permanent injunction should be granted restraining the defendant from entering, re-entering or remaining in possession - Whether cross on an indemnity basis should be granted

PARTIES : Shirley Francis Scott - Plaintiff John Joseph O'Riley - Defendant

FILE NUMBER(S) : SC 3953/04

COUNSEL : Mr A Gruzman - Plaintiff John Joseph O'Riley - In Person - Defendant

SOLICITORS : McBride Harle & Martin Solicitors

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

GZELL J

FRIDAY 2 MARCH 2007

3953/04 SHIRLEY FRANCIS SCOTT v JOHN JOSEPH O'RILEY EX TEMPORE JUDGMENT 1 The application before the court is for a permanent injunction restraining the defendant, Mr O'Riley, from entering, or remaining, or re-entering upon the property at 119 Queen Victoria Street, Bexley, New South Wales. 2 The matter has had a long history. Suffice it to say that on 13 October 2006, Mr O'Riley was ordered to give possession of the property by no later than 17 November 2006. He did not do so. On 7 December 2006 an order was made for the issue of a writ of possession to be executed on or after 15 January 2007. The writ was executed on 21 February 2007 and possession of the premises was given to the plaintiff by the sheriff. 3 The locks were changed but on that day Mr O'Riley re-entered the premises and has remained in possession. He has been served with the notice of motion and the supporting affidavit. He has informed the court that the property ought not to be sold and he ought to be entitled to remain in it. 4 He has said that he has nowhere to go. When asked whether he would give an undertaking to the court to leave the property, he reiterated he had nowhere to go. 5 Orders made by the court must be obeyed. In my view, the material clearly demonstrates the need to make the injunction permanent. 6 I order that the defendant, John Joseph O'Riley, be restrained from entering, or re-entering, or remaining upon the property at 119 Queen Victoria Street, Bexley, in the State of New South Wales. 7 An order for costs on an indemnity basis together with an order for retention of a sum from the proceeds of sale of the property, being the share due to Mr O'Riley, is sought. I do not have material before the court that would justify me making an order for retention, but the evidence before the court clearly establishes a basis upon which an order for costs on an indemnity basis should be made. 8 I therefore order that Mr O'Riley pay the plaintiff's costs on an indemnity basis forthwith upon assessment or agreement. 9 I direct that these orders may be entered forthwith.