Campbell v Illawarra Golf Club Pty Limited (In Liquidation) (No 3) [2014] NSWSC 341

Campbell v Illawarra Golf Club Pty Limited (In Liquidation) (No 3) [2014] NSWSC 341

The protection afforded by r. 6.8 of the Uniform Civil Procedure Rules and service requirements was superfluous because the applicant was aware of the proceedings yet did not assert any rights; the unexplained delay in seeking relief further militated against granting a stay; and there was insufficient evidence that the applicant occupied the property. Therefore, requirements of r. 6.8 were dispensed with, temporary stay vacated, and the notice of motion dismissed.

Jurisdiction
Australia
Judgment Date
01 April 2014
Procedural Posture
Interlocutory Application / Judgment on Notice of Motion for Stay of Execution of Writ of Possession
Outcome
Notice of motion dismissed. Orders made for costs against applicant. Stay vacated.
Legal Topics
['stay of Execution' 'writ of Possession' 'service of Notice on Occupier' 'mortgage Enforcement' 'delay in Bringing Proceedings']
['civil Procedure' 'property Law'] ['stay of Execution' 'writ of Possession' 'service of Notice on Occupier' 'mortgage Enforcement' 'delay in Bringing Proceedings']

Case Brief

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Procedural Posture

Interlocutory Application / Judgment on Notice of Motion for Stay of Execution of Writ of Possession

Legal Issues

  1. 1 ['Whether requirements of r. 6.8 of Uniform Civil Procedure Rules for service on occupier should be dispensed with' 'Whether applicant was in occupation at the relevant time' 'Whether failure to serve notice on applicant vitiated proceedings' 'Whether applicant entitled to stay of execution of writ of possession' 'Effect of consent to judgment under a deed' 'Whether delay disentitled applicant to relief']

Ratio Decidendi

The protection afforded by r. 6.8 of the Uniform Civil Procedure Rules and service requirements was superfluous because the applicant was aware of the proceedings yet did not assert any rights; the unexplained delay in seeking relief further militated against granting a stay; and there was insufficient evidence that the applicant occupied the property. Therefore, requirements of r. 6.8 were dispensed with, temporary stay vacated, and the notice of motion dismissed.

Court Disposition

Notice of motion dismissed. Orders made for costs against applicant. Stay vacated.

Orders

  • ['The requirements of r. 6.8 of the Uniform Civil Procedure Rules are dispensed with pursuant to s. 14 of the Civil Procedure Act 2005.' 'The order made on 10 December 2013 granting a temporary stay of the execution of the writ of possession in relation to the land situated at and known as 87 Princes Highway,...