Rickard v Rickard [2009] NSWSC 93

New South Wales Supreme Court

CITATION : Rickard v Rickard [2009] NSWSC 93

HEARING DATE(S) : 19 February 2009 JURISDICTION : Common Law

JUDGMENT OF : Michael Grove J

EX TEMPORE JUDGMENT DATE : 19 February 2009

DECISION : Motion dismissed

CATCHWORDS : POSSESSION OF LAND - Stay of writ of execution - Undertaking not to make further applications - Ex parte application contrary to undertaking

CATEGORY : Procedural and other rulings

PARTIES : Keith Murray RICKARD - Plaintiff Cheryl Kay RICKARD - Defendant/Applicant

FILE NUMBER(S) : SC 1283/06

COUNSEL : No appearance - Plaintiff In person - Defendant/Applicant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MICHAEL GROVE J

Thursday 19 February 2009 1283/06 - KEITH MURRAY RICKARD v CHERYL KAY RICKARD JUDGMENT - on notice of motion

1 HIS HONOUR: At present in court this afternoon is Cheryl Kay Rickard seeking to file in court a notice of motion asking for a stay of execution of a writ of possession scheduled to take place tomorrow, 20 February 2009. 2 She seeks to file in court an affidavit in support of that motion. I am unaware as to whether the plaintiff has been informed of this application. Ms Rickard says that some information has been communicated to solicitors. For present purposes I will note that there is no evidence of service but I will permit the notice of motion to be filed in court. I will treat it as returnable instanter. 3 The affidavit of Ms Rickard points out that she is a retired teacher. She states that she is seeking finance to have the property bought back from her brother. She describes the property as having been a family home for fifty years. She says she has resided there for the last fifteen years. Her brother, apparently, has requested a sale price of $500,000. 4 Ms Rickard notes that she received notice to vacate from the Sheriff's Office at Parramatta on 9 February 2009, giving her very little time to vacate. On 11 February she sought a medical certificate. Exhibited to her affidavit is a certificate of 12 February which says that the person who has been examined, Cheryl Rickard, will be unfit for work and usual activities from 12 to 20 February due to a viral illness. 5 Ms Rickard says she has a great amount of possessions in the property and a remover would require more time. She doesn't have premises to go to presently. She also has two small dogs to care for. She says this would be extremely difficult due to the time factor. The affidavit finishes with the assertion that she is asking for consideration in relation to buying the family home from her brother. 6 It is necessary, however, to make reference to the fairly significant history of this matter, which commences with proceedings as long ago as 27 March 2007. The matter was before Justice Fullerton on 20 January 2009. The file contains a judgment or order entered on 28 January 2009. That order extended the stay of execution of the writ of possession until 4 pm on 7 February. 7 There was a notation formally of an agreement by the parties that the defendant would pay a certain amount in respect of costs ordered in relation to matters which occurred in November 2008. Ms Rickard says she has paid the amount involved and for present purposes I accept what she tells me. 8 More significantly, however, is a noted agreement that in consideration of this agreement the defendant, that is to say Ms Rickard, undertakes not to make any further applications for a stay of execution of the writ of possession after 4 pm on 7 February 2009. 9 Whilst one is always sympathetic to a person who has their property inside a house which they are required to vacate, it is apparent that the day of reckoning has always been recognised by Ms Rickard as likely to come at some time. In the light of the undertaking, this application is in clear breach thereof. 10 The material in the affidavit, whilst as a matter of ordinary humanity would excite some sympathy for the applicant, does not justify interference with the regular processes of the court nor, indeed, to overlook the breach of the undertaking which was made for valuable consideration. 11 The motion is dismissed. **********