James & Ors v James [2018] NSWSC 316

James & Ors v James [2018] NSWSC 316

The defendant did not claim a substantive right to remain in possession, and none of her reasons justified further delay. She had already had substantial time since the September 2017 orders and notice to vacate, there was ordinarily built-in delay before execution of a writ, she did not show that her financial position would improve with further delay, repair and sale preparation were matters for the trustees for sale, evidence for any improvement claims could be gathered after possession and pursued by the trustee in bankruptcy, and the medical evidence did not establish that her anxiety warranted delay. Her conduct also supported an inference that she was unlikely to co-operate with...

Jurisdiction
Australia
Judgment Date
16 March 2018
Procedural Posture
Application by Trustees for Sale for Issue of a Writ for Possession of Real Property After Appointment Under Conveyancing Act 1919, S 66 G / Equity Duty List; Amended Motion for Writ for Possession
Outcome
Writ for possession of the subject property issued in favour of the trustees for sale against the defendant.
Legal Topics
['trustees for Sale' 'writ for Possession' 'co Ownership as Tenants in Common' 'sale of Land Under Conveyancing Act 1919, S 66 G' 'bankruptcy Vesting of Claims' 'costs']
['real Property' 'equity' 'bankruptcy' 'civil Procedure'] ['trustees for Sale' 'writ for Possession' 'co Ownership as Tenants in Common' 'sale of Land Under Conveyancing Act 1919, S 66 G' 'bankruptcy Vesting of Claims' 'costs']

Case Brief

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Procedural Posture

Application by Trustees for Sale for Issue of a Writ for Possession of Real Property After Appointment Under Conveyancing Act 1919, S 66 G / Equity Duty List; Amended Motion for Writ for Possession

Legal Issues

  1. 1 ['Whether a writ for possession should issue in favour of the trustees for sale against the defendant in occupation of the property.' 'Whether the issue of the writ should be delayed because the defendant said she had no money and nowhere to go.' 'Whether the issue of the writ should be delayed to allow the defendant to undertake or document repairs, restoration and improvements to the property.' "Whether the defendant's anxiety condition warranted delaying the issue of the writ." "Whether costs associated with the writ proceedings should be borne from the defendant's share of sale proceeds."]

Ratio Decidendi

The defendant did not claim a substantive right to remain in possession, and none of her reasons justified further delay. She had already had substantial time since the September 2017 orders and notice to vacate, there was ordinarily built-in delay before execution of a writ, she did not show that her financial position would improve with further delay, repair and sale preparation were matters for the trustees for sale, evidence for any improvement claims could be gathered after possession and pursued by the trustee in bankruptcy, and the medical evidence did not establish that her anxiety warranted delay. Her conduct also supported an inference that she was unlikely to co-operate with...

Court Disposition

Writ for possession of the subject property issued in favour of the trustees for sale against the defendant.

Orders

  • ['Grant leave for the issue of a writ for possession in respect of the land comprised in Folio Identifier 5/301996, being the land situated at and known as 17 Keith Street Clovelly, in the State of New South Wales.' 'Order that a writ for the possession of the Property issue forthwith.' 'Order that, no later than 20...