Supreme Court New South Wales Medium Neutral Citation: Galbraith v Pacific Link Housing (No 2) [2015] NSWSC 1136 Hearing dates: 4 August 2015 Decision date: 04 August 2015 Jurisdiction: Common Law Before: Button J Decision: (1) The execution of a writ for possession for premises at X XXXX XXXX, Green Point, New South Wales 2251 is stayed until 12 midday on Tuesday, 11 August 2015. (2) Each party is to pay their own costs of the proceedings before me. Catchwords: REAL PROPERTY – possession of land – application to stay execution of writ for possession – extension of time for departure granted on previous occasions - potential eviction of disabled person from publicly provided housing – execution of writ for possession stayed Legislation Cited: Civil Procedure Act 2005 (NSW), s 135 Category: Procedural and other rulings Parties: Karen-Anne Galbraith (Plaintiff) Pacific Link Housing (Defendant) Representation: Counsel: A Hourigan (Defendant) Solicitors: N Burgess (Carer of Plaintiff) Chris Ryan Legal Pty Ltd (Defendant) File Number(s): 2015/155921 ex tempore Judgment 1. This is an application for a stay of the execution of a writ for possession, brought pursuant to s 135 of the Civil Procedure Act 2005 (NSW). It has been brought on behalf of Ms Galbraith, who lives with her three children at publicly-provided accommodation on the Central Coast. The defendant is the provider of that accommodation. 2. I granted leave to Ms Burgess, a carer of the plaintiff, to appear before me, both today and last night. As my earlier judgment shows, I made very limited ex parte orders last night, my Associate having ascertained the position of the CEO of the defendant. This morning, the defendant was represented by counsel. 3. To state the background succinctly, there have been long-standing problems between the plaintiff and the defendant. Over the years, the plaintiff has asserted that her accommodation has been completely inappropriate, in light of her physical and emotional disabilities, and that she has been treated harshly and unfairly. To the contrary, the position of the defendant is that the plaintiff has behaved unreasonably and has been a very poor tenant. Because of the highly limited nature of the proceedings now before me, and the urgency of the matter, I have no intention of traversing all of those complaints by each of the parties, let alone seeking to determine them. 4. Many months ago, the defendant commenced proceedings to evict the plaintiff and her three children. That culminated in orders made by NCAT to that effect. There was an internal appeal within that Tribunal that extended the time for the departure of the plaintiff to some degree. 5. Thereafter, the plaintiff approached Hamill J on 27 May 2015 ex parte, and was granted an extension. 6. On 9 July 2015, the matter came before Fagan J, and the transcript of those proceedings is on file. By agreement, an appeal lodged by the plaintiff in this Court against the determination of NCAT was dismissed, and the plaintiff agreed that she would vacate the premises by 31 July 2015; that is, four or five days ago. Regrettably, that has not occurred, and I understand that a writ for possession has arrived at the Sheriff's office. 7. Ms Burgess explained that the plaintiff is very disabled and unprivileged. Life in many ways is very difficult for her. In particular, undertaking a move of a household of four people will be onerous indeed. Ms Burgess has also explained that there are many good-hearted people who will help with that task, which includes sorting through a great deal of material that is in possession of the plaintiff, but it will take quite some time. Ms Burgess has also explained that there is accommodation available at Forresters Beach, but it is hardly perfect. Ms Burgess also disputed the proposition of the defendant that the premises have become a fire trap, for the reason that many of the belongings of the plaintiff are quite damp. 8. Counsel for the defendant simply submitted that the plaintiff solemnly agreed, weeks ago in this Court, to leave and she has not done so. That in turn was in the context of proceedings that have been going on for approaching something like two years. He submitted that things have reached a crisis point, and I should make no further order staying execution of the writ. 9. Turning to my determination, in the circumstances of this case there is no question of me staying the writ for a period of three weeks and five days as submitted by Ms Burgess. I regret to say that things must move a great deal more urgently than that. 10. On the other hand, I think that it could be unduly harsh to simply dissolve the stay that I made last night and continued this morning, with the possible effect that the plaintiff, her children, and their belongings will be placed on the footpath this afternoon. I also think it is possible that the plaintiff and those who love and support her had not yet come to realise, before today, that the crisis has indeed arrived. 11. At first I thought that I should extend the stay until 9 am on Monday morning. That would permit a very great effort, including over the entirety of the weekend, to be undertaken. But in light of Ms Burgess' explanation that many of the volunteers, for religious reasons, will not be able to work on a Sunday, I think that my stay should be extended to Tuesday morning; that is, one week from today. To build in a final margin of error, that will be extended to midday on Tuesday next. 12. I repeat that I have been assured that the plaintiff and her children will have accommodation that evening, albeit it is accommodation that is hardly perfect. 13. To be clear: I regard the order that I shall make as an exceptional one, in light of the consent orders of 9 July entered into by the plaintiff. I have only made it as a last resort, in light of the difficult circumstances of the plaintiff. 14. Turning to costs, here is a case of a very unprivileged woman having been represented by a goodhearted helper. And the plaintiff has enjoyed some measure of some success in her application before me. Subject to anything Mr Hourigan has to say, I would be inclined not to make any order as to costs of today. [His Honour briefly heard submissions from Mr Hourigan with regard to costs.] 1. Despite the able submissions of Mr Hourigan with regard to costs being ordered in favour of his client with regard to the proceedings today, as a matter of discretion, in light of all of the circumstances that I have outlined, I simply propose to order that each party must pay their own costs of today. 2. For the foregoing reasons, I make the following orders: 1. The execution of a writ for possession for premises at X XXXX XXXX, Green Point, New South Wales 2251 is stayed until 12 midday on Tuesday, 11 August 2015. 2. Each party is to pay their own costs of the proceedings before me. ********** 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: 14 August 2015