Campbell v Illawarra Golf Club Pty Limited (In Liquidation) (No 3) [2014] NSWSC 341

Supreme Court New South Wales

Medium Neutral Citation: Campbell v Illawarra Golf Club Pty Limited (In Liquidation) (No 3) [2014] NSWSC 341 Hearing dates: 2 and 10 December 2013 Decision date: 01 April 2014 Before: Bellew J Decision: (i) The requirements of r. 6.8 of the Uniform Civil Procedure Rules are dispensed with pursuant to the provisions of s. 14 of the Civil Procedure Act 2005. (ii) The order made on 10 December 2013 granting a temporary stay of the execution of the writ of possession in relation to the land situated at and known as 87 Princes Highway, Maddens Plains, New South Wales, is vacated. (iii) The notice of motion is dismissed. (iv) The applicant is to pay the respondents' costs of the notice of motion, as agreed or assessed. Catchwords: PROCEDURE - application for stay of execution of writ of possession - where orders made for possession in proceedings to which applicant was not a party - where applicant knew of those proceedings and did not assert a right to possession - where evidence did not support a finding that the applicant was living at the property the subject of the order for possession - where unexplained delay in bringing proceedings

PROCEDURE - where rules make provision for service of notice on occupier when proceedings for possession are commenced - underlying purpose of the rule to allow an occupier the opportunity to assert rights - operation of rule superfluous where occupier had knowledge of the proceedings in any event - appropriate case in which to exercise the power to dispense with the requirement of the rule Legislation Cited: Real Property Act 1900 Uniform Civil Procedure Act 2005 Cases Cited: Campbell v Illawarra Golf Club Pty Limited (In Liquidation) [2012] NSWSC 1252 Campbell v Illawarra Golf Club Pty Limited (In Liquidation) (NSWSC unreported, Garling J, 15 February 2013) Campbell v Illawarra Golf Club Pty Limited (In Liquidation) (No 2) [2013] NSWSC 1387 GE Personal Finance Pty Limited v Smith [2006] NSWSC 889 National Australia Bank Limited v Damelian [2013] NSWSC 792 In re Foster; Ex parte Basan (1885) 2 Morr 29 Re Verma; Ex parte Deputy Commissioner of Taxation (1985) 4 FCR 181 Uniform Civil Procedure Rules In Yeshiva Properties No. 1 Pty Limited and ors v Lubavitch Mazal Pty Limited and anor (No. 2) [2003] NSWSC 752 Category: Principal judgment Parties: Christopher Brian Birch - Applicant Christopher Robert Campbell - First Respondent Vaughan Neil Strawbridge - Second Respondent Representation: Counsel: Mr A McQuillan - Applicant Mr A Spencer - Respondents Solicitors: Minter Ellison - Respondents File Number(s): 2011/382861 Publication restriction: Nil