Pham v Enterprise ICT Pty Ltd & Ors (No 8) [2018] NSWSC 1492

Pham v Enterprise ICT Pty Ltd & Ors (No 8) [2018] NSWSC 1492

The writ for possession should issue because the prior judgment for possession stood, no procedural prerequisite was shown to be unsatisfied, the Sebie family had adequate alternative accommodation at the Seven Hills property, and the alleged leases did not prevent enforcement: the Rose Sebie arrangement lacked an intention to create legal relations, and the Oswald Agreement was not shown to be a lease conferring exclusive possession and in any event was not shown to have been notified to the plaintiffs before they became registered proprietors.

Jurisdiction
Australia
Judgment Date
04 October 2018
Procedural Posture
Application for Leave to Issue a Writ of Possession of Land / Hearing of Paragraph 9 of the Amended Notice of Motion After Judgment for Possession
Outcome
Writ for possession issued.
Legal Topics
['writ for Possession' 'enforcement of Judgment for Possession' "registered Proprietor's Indefeasibility" 'unregistered Tenancy' 'notice of Tenancy' 'discretion to Delay Enforcement']
['civil Procedure' 'property Law' 'land Titles' 'enforcement of Judgments'] ['writ for Possession' 'enforcement of Judgment for Possession' "registered Proprietor's Indefeasibility" 'unregistered Tenancy' 'notice of Tenancy' 'discretion to Delay Enforcement']

Case Brief

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Procedural Posture

Application for Leave to Issue a Writ of Possession of Land / Hearing of Paragraph 9 of the Amended Notice of Motion After Judgment for Possession

Legal Issues

  1. 1 ['Whether leave should be granted for the issue of a writ of possession of the Chiswick property.' "Whether discretionary considerations concerning the Sebie family's accommodation and Rose Sebie's ill-health justified refusing or delaying the writ." 'Whether alleged leases to Rose Sebie or Jade Oswald prevailed against the plaintiffs as registered proprietors under s 42(1)(d) of the Real Property Act 1900 (NSW).']

Ratio Decidendi

The writ for possession should issue because the prior judgment for possession stood, no procedural prerequisite was shown to be unsatisfied, the Sebie family had adequate alternative accommodation at the Seven Hills property, and the alleged leases did not prevent enforcement: the Rose Sebie arrangement lacked an intention to create legal relations, and the Oswald Agreement was not shown to be a lease conferring exclusive possession and in any event was not shown to have been notified to the plaintiffs before they became registered proprietors.

Court Disposition

Writ for possession issued.

Orders

  • ['Grants leave to the plaintiffs for the issue of a writ of possession of the property at XXX Crescent, Chiswick folio X in DP XXX.' 'Directs that the writ issue forthwith but lie in the Registry up to and including 26 October 2018 or such later date as the Court may order.' "Robert Sebie and Ramzy Sebie are ordered...