Windlock Pty Ltd v V & M Davidovic Pty Ltd [2013] NSWSC 1320

Supreme Court New South Wales

Medium Neutral Citation: Windlock Pty Ltd v V & M Davidovic Pty Ltd [2013] NSWSC 1320 Hearing dates: 12 September 2013 Decision date: 12 September 2013 Jurisdiction: Common Law Before: Davies J Decision: 1. Application for stay of execution of writ of possession refused. 2. Applicant's Notice of Motion filed 11 September 2013 is dismissed with costs. Catchwords: REAL PROPERTY - possession of land - application for stay of writ - application by occupier - application on basis of need for time to re-locate business - occupier served but did not apply to be joined as defendant - occupier commences to operate business after being served with notice and Statement of Claim - occupier knew of consent orders regarding date of execution of writ - occupier had no right to be in occupation of land - application made the day before scheduled eviction - stay refused. Category: Interlocutory applications Parties: Windlock Pty Ltd (Plaintiff/Respondent on the Motion) V & M Davidovic Pty Ltd (Defendant) Obnova Concrete NSW Pty Ltd ACN 153 732 275 (Applicant on the Motion) Representation: Counsel: J R Young (Applicant) H S Packer (Respondent) Solicitors: Good Legal Lawyers (Applicant) Hansons Lawyers (Respondent) File Number(s): 2012/017611

Judgment 1These proceedings commenced on 18 January 2012 seeking possession of land at xx xxxxx xxxxxx Unanderra. 2Judgment for possession was given on 23 July 2012. 3On 24 January 2012 service was effected on a company called Obnova Concrete NSW Pty Limited of a Notice to Occupier and the Statement of Claim in accordance with the rules. It is that company which now applies by Notice of Motion for a stay on a writ of execution which has been issued in respect of the land. 4On 29 March 2012 a related company, Obnova Concrete Pty Limited, filed a Notice of Motion seeking to be joined to the possession proceedings. 5On 26 March this year orders were made by consent to the effect that that Notice of Motion should be dismissed. At no time has the present Applicant sought to be joined to the possession proceedings. It is accepted, however, that the present Applicant has been aware, by reason of common directors with the Defendant, of the course of events in relation to the proceedings. 6The consent orders that were made on 26 March this year, in addition to dismissing the Notice of Motion of Obnova Concrete Pty Limited, granted leave to the Plaintiff to issue a writ of possession in respect of the premises, such writ not to be executed on or before 26 June 2012 (this was obviously intended to be 2013). 7A further term noted that the Plaintiff and Obnova Concrete agreed to negotiate in good faith for the purchase of the property, either by Obnova Concrete or a third party, and that there was to be a mediation with regard to that by 29 May 2013. Such a mediation was held on 23 May but was not successful. 8A writ of possession issued but there appears to have been some defect in relation to that with the result that a further writ was issued pursuant to orders made by Bergin CJ at Eq on 27 August 2013 including an order that the writ could be executed as soon as it issued. The Sheriff has indicated that the day for execution of that writ will be tomorrow, 12 September. 9It is in those circumstances that the present Applicant seeks a stay on the execution of that writ. 10The matter is principally put on two bases. The first is that it will be necessary for the Applicant to relocate its business to other premises. In that regard the affidavit from Mr Davidovic, a director of the present Applicant, is that since July 2013 the Applicant has been searching for suitable alternative premises to which it can shift its business and operations. 11Associated with this basis is the fact that it is said third parties will be detrimentally affected if the writ is executed tomorrow. Those third parties are employees of the Applicant as well as third parties with whom the Applicant has contracts in relation to its business. 12The second basis relies on evidence from a third party who has made an offer to purchase the premises for the amount of $2.5 million plus GST. That figure is said to be in excess of a valuation of the property by a valuer retained on behalf of the Applicant. That valuer, John Dignan, has prepared a valuation report and annexed it to an affidavit. The valuation of the property that Mr Dignan has assessed is $1.9 million. That figure is not accepted by the Plaintiff as being the market value of the property. The Plaintiff is of the opinion that the property is worth something slightly less than twice that figure. 13What the Applicant proposes is that either the present offer by the third party, a company called Realta Enterprises Pty Limited, be accepted, alternatively, that the property be put to auction. In the meantime the Applicant says that if permitted to stay in occupation of the premises it is prepared to pay six months rent in advance totalling $120,000, such time estimate being designed to cover the holding of the auction and the settlement of the arrangement, at least to the point where either the Applicant is able to remove itself from the premises or negotiate with the purchaser to stay in occupation. 14The application to stay the writ is opposed by the Plaintiff. The reasons for that have been set out at length in a letter by the Plaintiff's solicitors to the Applicant's solicitors dated 11 September 2013. It is not necessary to detail all of that material. It is sufficient to note that the Plaintiff says that it has been considerably delayed by the approach taken both by the named Defendant, which is the registered proprietor of the land, and by the associated companies, including Obnova Concrete Pty Limited who made the application to be joined last year, and by the present Applicant. 15There is a suggestion that there might be some equitable right on the Applicant's part to remain on the property. That right is said to arise as a result of an estoppel that apparently commences with a conversation set out in paragraph 9 of Mr Davidovic's affidavit where the director of the Plaintiff is supposed to have said that a separate business, that is separate from the named Defendant, could be started and carried on at the land. 16The estoppel is then said to be supported by the fact that the Applicant commenced operation of the business from 1 July last year having taken it over from the Defendant or one of the other companies. As I mentioned earlier, no application has been made at any stage by the present Applicant to be joined as a Defendant in the proceedings. I note further that no equitable right has been formally asserted by way of any proceedings being taken. 17The position is, therefore, that the present Applicant has been aware of the proceedings seeking possession since January last year, that with the knowledge of those proceedings it took over the operation of the business on 1 July last year, that it was aware on 26 March this year of consent orders which would have bound it, that a writ of possession might be executed by 26 June 2013. In the face of all that it did nothing, either to assert any rights it says that it has to occupation of the property, nor to look for alternative premises to move its business until July of this year. 18Further, despite two letters being sent to a solicitor acting for the Applicant on 11 July and 26 July suggesting that any application that was intended to be brought to seek a stay should be done promptly, no such application was made until today. 19The Applicant does not demonstrate any legal or equitable right to be or remain on the property. It has had more than ample opportunity to assert any rights or, in the alternative, to make appropriate arrangements to move its business to other premises. 20The Plaintiff has been out of the balance of the moneys owing for some considerable time and I note in that regard that the loans made were due to be repaid at some time in 2010. 21Any third parties who are affected by the execution of this writ tomorrow have been affected in that way by the failure of the Applicant to take some form of earlier action to avoid issues which will undoubtedly arise as a result of the execution of the writ tomorrow. 22What is sought by the Applicant at the very last possible time is an indulgence not justified by its behaviour to this point in time over an extended period of more than 18 months. 23In all those circumstances the application is refused and the Notice of Motion is dismissed with costs. 24After I dismissed the Notice of Motion Mr Young of Counsel for the Applicant drew my attention to the Notice to Vacate which was apparently served on 5 September requiring that the property be vacated by 12 September. Mr Young sought at least a seven day period on the basis that that was reasonable in relation to relocating a commercial operation. 25I refused that further application for two reasons. The first is that if the Sheriff is required to re-schedule an eviction there is generally a six week delay in being able to do that. Secondly, the Applicant waited until the last minute before making the application, in particular, more than 2 weeks after Bergin CJ in Eq ordered, in the presence of the Applicant's solicitor, that the writ could be executed as soon as it issued.