Wilkes v Bykowski (No. 2) [2016] NSWSC 1828

Wilkes v Bykowski (No. 2) [2016] NSWSC 1828

Leave to issue a writ of possession was appropriate, but practical considerations and the time of year justified delaying execution until 27 January 2017. Indemnity costs were refused because the 17 October 2016 letter contained no element of compromise and simply required the Defendant to capitulate; there was also...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
15 December 2016
Procedural Posture
Real Property Possession Proceedings / Post Judgment Application for Leave to Issue a Writ of Possession and Costs Ruling
Outcome
Plaintiff granted leave to issue a writ of possession, with execution delayed until 27 January 2017; Defendant ordered to pay Plaintiff's costs on the ordinary basis.
Legal Topics
['possession of Land' 'writ of Possession' 'calderbank Offer' 'indemnity Costs' 'ordinary Costs']
['real Property' 'civil Procedure' 'costs'] ['possession of Land' 'writ of Possession' 'calderbank Offer' 'indemnity Costs' 'ordinary Costs']

Source-derived case record

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Procedural Posture

Real Property Possession Proceedings / Post Judgment Application for Leave to Issue a Writ of Possession and Costs Ruling

Legal Issues

  1. 1 ['Whether the Plaintiff should be granted leave to issue a writ of possession and when it should be executable.' "Whether the Plaintiff should receive indemnity costs based on the solicitors' letter dated 17 October 2016."]

Ratio Decidendi

Leave to issue a writ of possession was appropriate, but practical considerations and the time of year justified delaying execution until 27 January 2017. Indemnity costs were refused because the 17 October 2016 letter contained no element of compromise and simply required the Defendant to capitulate; there was also a serious legal issue to be resolved, so it was not unreasonable for the Defendant not to accept the offer. Costs were therefore ordered on the ordinary basis.

Court Disposition

Plaintiff granted leave to issue a writ of possession, with execution delayed until 27 January 2017; Defendant ordered to pay Plaintiff's costs on the ordinary basis.

Orders

  • ['The Plaintiff is granted leave to issue a Writ of Possession in respect of the whole of the land in Folio Identifier 1/587234 situated at Lane Cove and known as 50A Bridge Street, Lane Cove, in the State of New South Wales, such writ not to be executed before 27 January 2017.' "The Defendant is to pay the...