Misthold Pty Ltd v NSW Historic Sites and Railway Heritage Company Pty Ltd (No 3) [2022] NSWSC 840

Misthold Pty Ltd v NSW Historic Sites and Railway Heritage Company Pty Ltd (No 3) [2022] NSWSC 840

The affidavits were rejected because Rothbury Riot and Spirit of the Hunter were not entities referred to in MFI-1, had ample notice of the possession proceedings, were given leave to make any application and file supporting material but did not do so, and the affidavits did not address the only issue for the hearing, namely the timing of the lifting of the stay on execution of the writ of possession. Instead, the affidavits sought to advance a claim to an interest in the land inconsistent with orders already made after a full hearing on Misthold's possession claim.

Jurisdiction
Australia
Judgment Date
24 June 2022
Procedural Posture
Civil Procedure; Possession Proceedings / Post Judgment Hearing Concerning Non Party Evidence and the Stay of Execution of a Writ of Possession
Outcome
Affidavits rejected.
Legal Topics
['court Control of Proceedings' 'non Party Evidence' 'writ of Possession' 'notice to Occupiers' 'stay of Execution']
['civil Procedure' 'property Law'] ['court Control of Proceedings' 'non Party Evidence' 'writ of Possession' 'notice to Occupiers' 'stay of Execution']

Case Brief

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Procedural Posture

Civil Procedure; Possession Proceedings / Post Judgment Hearing Concerning Non Party Evidence and the Stay of Execution of a Writ of Possession

Legal Issues

  1. 1 ['Whether affidavits sworn by Christopher Richards on behalf of Rothbury Riot and Steam Museum Group Ltd and The Spirit of the Hunter Pty Ltd should be accepted in a hearing limited to the timing of the stay of execution of a writ of possession.' 'Whether non-parties not referred to in MFI-1 could use the hearing about relief to advance a claim to an interest in land inconsistent with orders already made after judgment.']

Ratio Decidendi

The affidavits were rejected because Rothbury Riot and Spirit of the Hunter were not entities referred to in MFI-1, had ample notice of the possession proceedings, were given leave to make any application and file supporting material but did not do so, and the affidavits did not address the only issue for the hearing, namely the timing of the lifting of the stay on execution of the writ of possession. Instead, the affidavits sought to advance a claim to an interest in the land inconsistent with orders already made after a full hearing on Misthold's possession claim.

Court Disposition

Affidavits rejected.

Orders

  • ['Reject the affidavit of Christopher Richards sworn 8 June 2022 on behalf of Rothbury Riot and Steam Museum Group Ltd.' 'Reject the affidavit of Christopher Richards sworn 8 June 2022 on behalf of The Spirit of the Hunter Pty Ltd.']