Davies v Smith (No 2) [2019] NSWSC 1291

Davies v Smith (No 2) [2019] NSWSC 1291

As the court is satisfied that the conditions in s 3(1)(b), (c), and (d) of the Restricted Premises Act 1943 (NSW) are present and likely to persist, and there is no relevant countervailing discretion based on personal hardship, the only proper exercise of discretion is to make the declaration, even though it will have the effect of dispossessing the defendant and his family from their home.

Parties
Plaintiff: Detective Sergeant Evan Davies; Defendant: Malcolm Gordon Smith
Jurisdiction
Australia
Judgment Date
26 September 2019
Procedural Posture
Application for Declaration Under Restricted Premises Act 1943 (nsw) / Principal Judgment at Trial
Outcome
Declaration made under s 3(1) of the Restricted Premises Act 1943 (NSW) that the premises are restricted premises; stay of declaration for 120 days; no order as to costs.
Legal Topics
Restricted Premises Act, Declaration of Restricted Premises, Discretion in Statutory Declarations, Effect of Declaration on Residential Property, Application of Statutory Interpretation Principles
Criminal Law Property Law Restricted Premises Act Declaration of Restricted Premises Discretion in Statutory Declarations Effect of Declaration on Residential Property Application of Statutory Interpretation Principles

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Parties

Detective Sergeant Evan Davies

Plaintiff

Malcolm Gordon Smith

Defendant

Procedural Posture

Application for Declaration Under Restricted Premises Act 1943 (nsw) / Principal Judgment at Trial

Legal Issues

  1. 1 Whether sufficient grounds exist under s 3(1)(b), (c), and (d) of the Restricted Premises Act 1943 (NSW) for a declaration in respect of residential premises
  2. 2 Whether the discretion to make a declaration should be exercised where the effect is to dispossess the owner-occupier
  3. 3 The relevance of hardship to the defendant or his family in the exercise of discretion under s 3 of the Act

Ratio Decidendi

As the court is satisfied that the conditions in s 3(1)(b), (c), and (d) of the Restricted Premises Act 1943 (NSW) are present and likely to persist, and there is no relevant countervailing discretion based on personal hardship, the only proper exercise of discretion is to make the declaration, even though it will have the effect of dispossessing the defendant and his family from their home.

Court Disposition

Declaration made under s 3(1) of the Restricted Premises Act 1943 (NSW) that the premises are restricted premises; stay of declaration for 120 days; no order as to costs.

Orders

  • Declare under s 3(1) of the Restricted Premises Act 1943 (NSW) that the premises identified by NSW Land Registry Services as Lot 57 in Deposited Plan 244895, commonly known as 12 Nottingham Avenue, Castle Hill in New South Wales, are premises to which Part 2 of the Act applies.
  • Stay the effect of the declaration for a period of 120 days.