Capital Access Pty Ltd v Charnwood Constructions Pty Ltd [2022] NSWSC 1185

Capital Access Pty Ltd v Charnwood Constructions Pty Ltd [2022] NSWSC 1185

The plaintiff was entitled to grant of leave for a writ of restitution because the third defendant, having re-entered the property under an agreed extension to refinance, failed to vacate as required and thus remains a trespasser; there was a direct nexus between the original writ of possession and the necessity to recover possession again, justifying the issue of a writ of restitution.

Jurisdiction
Australia
Judgment Date
06 September 2022
Procedural Posture
Notice of Motion in Civil Proceedings / Application for Leave to Issue Writ of Restitution
Outcome
Leave granted to the plaintiff to issue a writ of restitution to restore possession of the land at 184 Carrington Avenue, Hurstville, NSW 2220.
Legal Topics
['enforcement of Judgments' 'writs of Restitution' 'possession of Land']
['civil Procedure'] ['enforcement of Judgments' 'writs of Restitution' 'possession of Land']

Case Brief

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Procedural Posture

Notice of Motion in Civil Proceedings / Application for Leave to Issue Writ of Restitution

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave to issue a writ of restitution to recover possession of the land after the third defendant re-entered following execution of a writ of possession and failed to vacate as per agreement.' "Whether the third defendant's re-occupation constituted trespass, fraud, or stratagem, and whether there was a sufficient nexus to warrant a writ of restitution."]

Ratio Decidendi

The plaintiff was entitled to grant of leave for a writ of restitution because the third defendant, having re-entered the property under an agreed extension to refinance, failed to vacate as required and thus remains a trespasser; there was a direct nexus between the original writ of possession and the necessity to recover possession again, justifying the issue of a writ of restitution.

Court Disposition

Leave granted to the plaintiff to issue a writ of restitution to restore possession of the land at 184 Carrington Avenue, Hurstville, NSW 2220.

Orders

  • ['Leave for the issue of a writ of restitution to restore to the plaintiff possession of the land comprised in folio identifier 36/8011 of the Register known as 184 Carrington Avenue, Hurstville NSW 2220.']