Supreme Court New South Wales Medium Neutral Citation: Firstmac Fiduciary Services Pty Limited v Gilmour (No 2) [2013] NSWSC 416 Hearing dates: 24 April 2013 Decision date: 24 April 2013 Jurisdiction: Common Law Before: Schmidt J Decision: 1. Leave for the issue of a further writ of restitution be granted. 2. A further writ of restitution be issued, to restore to the plaintiff possession of the land comprised in folio identifier XX/XXXXXX being the whole of the land situated and known as Lot XX in Deposited Plan XXXXXX at Jeremadra, Local Government Area Eurobodalla, Parish of XXXXXX County of XX XXXXXXX, also known as XX XXX XXXXX XXXXX Rd Jeremadra NSW, forthwith. 3. An order pursuant to rule 40.7 of the Uniform Civil Procedure Rules 2005 (NSW) that a sealed copy of the Court's judgment in these proceedings of 18 July 2012 be issued with the following endorsement: "Brett Andrew Gilmour, you are served with a copy of this judgment and you are liable to imprisonment or to sequestration if you do not give possession of the land contained in folio identifier XX/XXXXXX being the whole of the land situated and known as Lot XX in Deposited Plan XXXXXX at Jeremadra, Local Government Area Eurobodalla, Parish of XXXXXX County of XX XXXXXXX, also known as XX XXX XXXXX XXXXX Rd Jeremadra NSW (Property) to the plaintiff, or if you remain upon that Property, or if you re-enter that Property after possession has been delivered to the plaintiff." 4. An order pursuant to rule 40.7 of the Uniform Civil Procedure Rules 2005 (NSW) that service of the judgment be effected by email. 5. Personal service of this Notice of Motion, the Statement of Charge and any affidavits in support and these orders be dispensed with and service be effected by sending such documents to the defendant by email at the email address XXXXXXXXXXX@hotmail.com 6. Mr Gilmour to file and serve any affidavit on which he seeks to rely in order to defend the contempt charge on or before 5pm on Tuesday, 30 April 2013. 7. That the hearing of the contempt charge be listed before his Honour Justice Garling at 11:30am on Friday, 3 May 2013. 8. Costs are reserved. 9. Orders to be made forthwith. Catchwords: PROCEDURE - judgment and orders - possession - application for further writ of restitution - reoccupation of property after eviction - plaintiff entitled to possession - further writ of restitution granted - orders made for endorsement of judgment - contempt application - costs Legislation Cited: Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005 Cases Cited: Firstmac Fiduciary Service Pty Limited v Gilmour (2013) NSWSC 255 Perpetual v Kelso (2008) NSWSC 96 Category: Procedural and other rulings Parties: Firstmac Fiduciary Services Pty Limited (Plaintiff) Brett Andrew Gilmour (Defendant) Representation: Counsel: Mr Kauffman (Plaintiff) Solicitors: Gadens Lawyers (Plaintiff) File Number(s): 2012/33768 Publication restriction: None Judgment 1Before the Court this morning is a notice of motion filed by the plaintiff on 24 April 2013 by which various orders are sought: firstly, leave for the issue of a further writ of restitution; secondly, the issue of such a writ in order to restore to the plaintiff possession of land located at Jeremadra New South Wales; thirdly an endorsement on the Court's 18 July 2013 judgment in terms of r 40.7 of the Uniform Civil Procedure Rules 2005; fourthly, an order under r 40.7 that service be effected upon the defendant, Mr Gilmour, by email; fifthly, orders finding Mr Gilmour in contempt of court; sixthly, that Mr Gilmour be punished by committal to a correctional centre or fine, or both, for that contempt; seventhly, an order under r 40.6 for his committal; and eighthly, that personal service of the motion, the statement of charge, and any affidavits in support, be dispensed with and service be effected by sending the documents to Mr Gilmour by email. Orders as to costs are also sought. 2There is no appearance this morning by Mr Gilmour. He, however, communicated with my Associate before the plaintiff approached the Court, to advise that he had been given notice of the application which the plaintiff sought to make; that he lives in Batemans Bay where he has the care of his three children during the school holidays; and that he is unable to leave them, in order to come to Sydney to appear to defend the orders which are sought by the plaintiff on the motion. 3By further correspondence received from Mr Gilmour later this morning, after he had spoken to the plaintiff, he sought an adjournment of the motion until next week. The plaintiff this morning pressed for part of the motion to be dealt with in Mr Gilmour's absence, namely the issue of a further writ of restitution, but consented to the adjournment otherwise of the motion to a date next week. 4In the circumstances which are before the Court it seems to me that the plaintiff's position is one which must be accepted. There is evidence before the Court which makes it apparent that justice requires that the application for the issue of a further writ of restitution be dealt with, notwithstanding Mr Gilmour's absence today, and to otherwise stand the motion over for hearing next week. That accords with what is contemplated by s 56 of the Civil Procedure Act 2005, which requires the Court to exercise its powers to facilitate the just, quick and cheap resolution of the issues in the proceedings. 5I have come to that conclusion in the following circumstances. The motion is supported by three affidavits, the first sworn by the plaintiff's solicitor, Ms Vetrova, on 23 April; the second sworn by Mr Hayes-Williams, the principal licensee of First National Batemans Bay, real estate agents engaged on behalf of the plaintiff; and the third, an affidavit of service sworn by Mr Brooks, a process server, as to service of the judgment and order earlier made in these proceedings by his Honour Justice Campbell. 6What the affidavits reveal is that Justice Campbell gave a judgment in this matter on 7 March 2013 in which orders were made for the issue of a further writ of restitution for reasons which his Honour then published. Mr Gilmour then appeared (see Firstmac Fiduciary Service Pty Limited v Gilmour (2013) NSWSC 255). 7The affidavit of service establishes that the writ of restitution thereafter issued and the judgment endorsed in accordance with the provisions made in r 40.7 of the Uniform Civil Procedure Rules, were thereafter served on Mr Gilmour. The evidence also establishes that following that service the writ was not complied with, with the result, eventually, that Mr Gilmour was forcibly evicted from the property on 13 March 2013. Thereafter locks on the property were changed and Mr Gilmour's personal belongings, furniture, plant and equipment were removed from the property. 8Mr Hayes-Williams has outlined in his affidavit events which occurred on 26 March 2013, when he went to the property to discover that those locks had been removed and had been replaced with new locks. From conversations which he later had with Mr Gilmour, it appears that Mr Gilmour has re-entered the property and taken possession of it again. That understanding is confirmed by correspondence received by Ms Vetrova from Mr Gilmour, which is annexed to her affidavit. 9Further, by email correspondence sent on 23 April to Ms Vetrova ,Mr Gilmour advised Ms Vetrova that he denied that the plaintiff had any legal or lawful entitlement to any writ of restitution on grounds, he said, that "they have never taken possession of my property at XX XXX XXXXX XXXXX Road, Jeremadra. Your client has never set foot on my land." In that correspondence he indicated also that he objected to and denied the proceedings taken against him for restitution or contempt. 10The circumstances are such that it is apparent that the plaintiff's application for the issue of a further writ of restitution must be granted. The purpose for the writ of restitution procedure is as described by his Honour Justice Johnson in Perpetual v Kelso (2008) NSWSC 96 where his Honour described that procedure at [19] to [26]: "[19] It is appropriate that I refer briefly to certain legal issues. The writ of restitution is a recognised procedure where, after entry by the Sheriff under a writ of possession, a defendant forcibly resumes possession of the subject land and the plaintiff seeks to have possession restored. It is a writ in aid of another writ of execution: r 39.1(1)(g), Forms 61, 62, Uniform Civil Procedure Rules: Ritchie's Uniform Civil Procedure NSW, LexisNexis at [39.1.35]; Pitcher v Roe (1841) 9 Dowl 971; Alliance Building Society v Austen [1951] 2 All ER 1068. [20] The use of a writ of restitution has been acknowledged in later cases. In Abram v National Australia Bank Ltd (Court of Appeal, 1 May 1997, BC9701553) Powell JA, at pp 54-55, observed that re-entry by a defendant, after the execution of a writ of possession by the Sheriff, constitutes a trespass with the plaintiffs' remedy being an application for an order in the nature of a writ of restitution. Powell JA cited, in this respect, Pitcher v Roe and Alliance Building Society v Austen. [21] In Maher v Commonwealth Bank of Australia (No 2) (2004) 211 ALR 656 at 658 [6], Finkelstein J observed that there are cases where a defendant has retaken possession within a short period after possession has been taken where the Court would, upon application, issue a writ of restitution. His Honour cited Pitcher v Roe; Alliance Building Society v Austen and R v Elliott [1955] VLR 126. [22] There is a clear foundation for the course of action taken by the Plaintiff in this case, namely to seek a writ of restitution. [23] I should observe that, if this was a case where the writ of possession had not already been executed, and the Defendants were seeking to set aside a default judgment, a number of hurdles would lie in their path. As Simpson J observed in Balanced Securities Ltd v Oberlechner [2007] NSWSC 80 at [19], there are three components which an applicant needs to establish in an application to set aside default judgment. Firstly, an explanation for the failure to defend at the appropriate time. Secondly, a good (arguable) defence on the merits, and thirdly, that it is in the interests of justice to allow the proposed defence to be litigated. Her Honour continued at [20] to observe that, although it is not necessary that a defendant establish that the proposed defence will or must succeed, it is necessary to determine the question having in mind the competing interests of the parties - on the one hand the plaintiff who has properly, legitimately and regularly obtained judgment, and on the other hand, a defendant who has been deprived of an opportunity to advance what might be a legitimate defence. [24] On the material which has been advanced in support of the present application, in my view the Defendants would have grave difficulty on an application to set aside default judgment before a writ of possession had been executed. In circumstances where the writ has already been executed, their position is hopeless. [25] A power of sale under s 58 Real Property Act 1900 is to be exercised for the purpose of the plaintiff recovering moneys which are due and owing to it as a mortgagee (see s 58(3)). Even where a plaintiff takes possession of the property for the purpose of exercising its power of sale, a defendant may obtain an injunction restraining a mortgagee from exercising the power of sale if the amount of the mortgage debt (if this is not in dispute) is paid, or (if the amount is disputed) the amount claimed by the mortgagee is paid into Court: Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161 at 164-167 and 168-169; GE Personal Finance Pty Ltd v Smith [2006] NSWSC 889 at [17]. [26] If the Defendants wish to challenge the propriety of any conduct of the Plaintiff in respect of the enforcement of its security, it remains open to them to do so in other proceedings: see Carr v Finance Corporation of Australia Ltd (1982) 150 CLR 139 at 152; Adelaide Bank Ltd v BMG Poseidon Corp Pty Ltd [2008] NSWSC 68 at [25]." 11In this case this Court has earlier in these proceedings come to the view, after hearing the parties, that the plaintiff is entitled to possession of the property. Despite the issue, service and execution of the further writ of restitution issued as a result of the orders made by his Honour Justice Campbell on 7 March, the evidence establishes that Mr Gilmour has re-entered the property, taking the view that he is not obliged to abide by the writ which has been served upon him. 12The circumstances, I am satisfied on the evidence, are such that justice cannot permit the refusal of the further relief which is now pressed by the plaintiff, notwithstanding that the matter is proceeding ex parte. 13Mr Gilmour is unrepresented and the plaintiff properly does not press for the hearing of the application for contempt today, but accedes to the adjournment of the hearing of that application until next week. That is an appropriate concession because, plainly, Mr Gilmour must have the opportunity to meet the case put against him, including by way of any evidence on which he wishes to rely to resist the contempt allegations advanced against him. It is appropriate to give him until 5 pm on Tuesday of next week to file and serve any affidavit evidence on which he seeks to rely, in order to defend the contempt allegations which are advanced by the motion. 14It is also appropriate, in light of the evidence before the Court, to make orders for substituted service. There have been difficulties, plainly, in effecting personal service on Mr Gilmour, but it is apparent that the orders for substituted service made on the last occasion by his Honour Justice Campbell were successful. 15Mr Gilmour has also plainly being put on notice of the application now before the Court. Given the email communication which has been received from him, and his whereabouts, it is appropriate in the circumstances to provide for substituted service by way of email communication. 16The matter can go into the list for hearing of the contempt application before his Honour Justice Garling at 11.30 am on Friday next. The orders which I will make will include that service of an endorsed copy of the earlier judgment. That and these reasons are designed to provide Mr Gilmour a clear warning of the consequences of any deliberate or contumacious failure to comply with the orders made by Justice Campbell on 7 March and those which I propose to make today. 17Unless these Court's orders are set aside, Mr Gilmour is obliged to comply with them, as are all other litigants who come before this Court and against whom orders are made. The obvious way in which Mr Gilmour may avoid the Court's orders is to appeal them. Absent such an appeal, the other obvious way in which he may avoid the consequences of what appears to have been his failure thus far to comply with the Court's orders, is to take steps which will put him into a position of compliance with those orders. That is a matter which rests in his hands. 18If the available steps are not taken, Mr Gilmour will have to face the consequence which can flow from a contempt of the Court's orders. 19For all those reasons I make the following orders: 1. Leave for the issue of a further writ of restitution be granted. 2. A further writ of restitution be issued, to restore to the plaintiff possession of the land comprised in folio identifier XX/XXXXXX being the whole of the land situated and known as Lot XX in Deposited Plan XXXXXX at Jeremadra, Local Government Area Eurobodalla, Parish of XXXXXX County of XX XXXXXXX, also known as XX XXX XXXXX XXXXX Rd Jeremadra NSW, forthwith. 3. An order pursuant to rule 40.7 of the Uniform Civil Procedure Rules 2005 (NSW) that a sealed copy of the Court's judgment in these proceedings of 18 July 2012 be issued with the following endorsement: "Brett Andrew Gilmour, you are served with a copy of this judgment and you are liable to imprisonment or to sequestration if you do not give possession of the land contained in folio identifier XX/XXXXXX being the whole of the land situated and known as Lot XX in Deposited Plan XXXXXX at Jeremadra, Local Government Area Eurobodalla, Parish of XXXXXX County of XX XXXXXXX, also known as XX XXX XXXXX XXXXX Rd Jeremadra NSW (Property) to the plaintiff, or if you remain upon that Property, or if you re-enter that Property after possession has been delivered to the plaintiff." 4. An order pursuant to rule 40.7 of the Uniform Civil Procedure Rules 2005 (NSW) that service of the judgment be effected by email. 5. Personal service of this Notice of Motion, the Statement of Charge and any affidavits in support and these orders be dispensed with and service be effected by sending such documents to the defendant by email at the email address XXXXXXXXXXX@hotmail.com 6. Mr Gilmour to file and serve any affidavit on which he seeks to rely in order to defend the contempt charge on or before 5pm on Tuesday, 30 April 2013. 7. That the hearing of the contempt charge be listed before his Honour Justice Garling at 11:30am on Friday, 3 May 2013. 8. Costs are reserved. 9. Orders to be made forthwith. ********** 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: 25 April 2013