Lawrence v Arambasic [2020] NSWSC 1864

Lawrence v Arambasic [2020] NSWSC 1864

The writ of possession issued on 24 October 2018 was valid on its face, had not been set aside or stayed, and Dr White had received an eviction notice more than 30 days before execution. The Sheriff's officer's entry onto the Lightning Ridge property, cutting of the lock and steps to remove the occupant were authorised by s 7A of the Sheriff Act 2005 (NSW), and nothing in the pleading or evidence suggested conduct beyond that authority. The plaintiffs did not plead or evidence an arguable trespass to person, trespass to goods, negligence or other cause of action against the Sheriff. Accordingly, no reasonable cause of action was disclosed against the second defendant and the proceedings...

Jurisdiction
Australia
Judgment Date
18 December 2020
Procedural Posture
Civil Procedure Application for Summary Dismissal of Tort Claims Arising From Execution of Writ of Possession / Notice of Motion by the Second Defendant for Summary Dismissal Or, Alternatively, Strike Out
Outcome
Proceedings in relation to any claims against the second defendant dismissed; plaintiffs ordered to pay the second defendant's costs.
Legal Topics
['summary Dismissal' 'strike Out' 'trespass to Land' 'trespass to Person' 'trespass to Goods' 'execution of Writ of Possession' 'sheriff Act 2005 (nsw) S 7 A']
['civil Procedure' 'torts' 'sheriff and Enforcement Process'] ['summary Dismissal' 'strike Out' 'trespass to Land' 'trespass to Person' 'trespass to Goods' 'execution of Writ of Possession' 'sheriff Act 2005 (nsw) S 7 A']

Case Brief

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Procedural Posture

Civil Procedure Application for Summary Dismissal of Tort Claims Arising From Execution of Writ of Possession / Notice of Motion by the Second Defendant for Summary Dismissal Or, Alternatively, Strike Out

Legal Issues

  1. 1 ['Whether the proceedings against the Sheriff should be dismissed under r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) because no reasonable cause of action was disclosed.' 'Whether the plaintiffs disclosed an arguable cause of action in trespass to land, trespass to person or trespass to goods against the Sheriff arising from execution of the writ of possession on 18 December 2018.' "Whether the Sheriff's officer acted with lawful authority under s 7A of the Sheriff Act 2005 (NSW) when entering the Lightning Ridge property, cutting the lock and enforcing the writ of possession." "Whether the plaintiffs' arguments about service of the writ, human rights or duty of care provided an arguable basis for relief against the Sheriff."]

Ratio Decidendi

The writ of possession issued on 24 October 2018 was valid on its face, had not been set aside or stayed, and Dr White had received an eviction notice more than 30 days before execution. The Sheriff's officer's entry onto the Lightning Ridge property, cutting of the lock and steps to remove the occupant were authorised by s 7A of the Sheriff Act 2005 (NSW), and nothing in the pleading or evidence suggested conduct beyond that authority. The plaintiffs did not plead or evidence an arguable trespass to person, trespass to goods, negligence or other cause of action against the Sheriff. Accordingly, no reasonable cause of action was disclosed against the second defendant and the proceedings...

Court Disposition

Proceedings in relation to any claims against the second defendant dismissed; plaintiffs ordered to pay the second defendant's costs.

Orders

  • ['Pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW), the proceedings in relation to any claims against the second defendant are dismissed.' "The plaintiffs are to pay the second defendant's costs of and incidental to these proceedings."]