Kingelty v Stockley [2017] NSWSC 671

Kingelty v Stockley [2017] NSWSC 671

The orders made on 10 April 2017, although not expressly described as a stay, necessarily stayed execution by providing that the sheriff was not to execute the writs before 26 April 2017. Accordingly, by operation of s 7A(4) of the Sheriff Act 2005 (NSW), the 30 days' notice requirement in s 7A(3) did not apply. The defendant was in breach of the deed and the Court's orders, had agreed to give vacant possession by 24 April 2017, and had ample notice of the need to vacate and of the potential execution of writs of possession, so the sheriff should be directed to execute the writs forthwith and indemnity costs should be ordered.

Jurisdiction
Australia
Judgment Date
24 May 2017
Procedural Posture
Notice of Motion Seeking Directions for Execution of Writs of Possession and Costs / Post Judgment Enforcement Following Consent Orders and Issue of Writs of Possession
Outcome
Notice of motion granted; sheriff directed to execute the writs of possession forthwith and defendant ordered to pay the plaintiffs' costs on an indemnity basis.
Legal Topics
['execution of Writs of Possession' 'possession of Land' 'settlement Deed' 'consent Orders' 'indemnity Costs' "sheriff's Notice Requirements"]
['practice and Procedure' 'civil Procedure' 'real Property'] ['execution of Writs of Possession' 'possession of Land' 'settlement Deed' 'consent Orders' 'indemnity Costs' "sheriff's Notice Requirements"]

Case Brief

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Procedural Posture

Notice of Motion Seeking Directions for Execution of Writs of Possession and Costs / Post Judgment Enforcement Following Consent Orders and Issue of Writs of Possession

Legal Issues

  1. 1 ['Whether the Court should direct the sheriff to execute the writs of possession over lots 41 and 42 forthwith.' "Whether the 30 days' notice requirement in s 7A(3) of the Sheriff Act 2005 (NSW) applied despite earlier orders preventing execution before 26 April 2017." "Whether the defendant should pay the plaintiffs' costs of the notice of motion on an indemnity basis."]

Ratio Decidendi

The orders made on 10 April 2017, although not expressly described as a stay, necessarily stayed execution by providing that the sheriff was not to execute the writs before 26 April 2017. Accordingly, by operation of s 7A(4) of the Sheriff Act 2005 (NSW), the 30 days' notice requirement in s 7A(3) did not apply. The defendant was in breach of the deed and the Court's orders, had agreed to give vacant possession by 24 April 2017, and had ample notice of the need to vacate and of the potential execution of writs of possession, so the sheriff should be directed to execute the writs forthwith and indemnity costs should be ordered.

Court Disposition

Notice of motion granted; sheriff directed to execute the writs of possession forthwith and defendant ordered to pay the plaintiffs' costs on an indemnity basis.

Orders

  • ['I direct that the sheriff execute the writs of possession over lots 41 and 42 in deposited plan 548253, issued on 1 May 2017, forthwith.' "I order that the defendant pay the plaintiffs' costs of the notice of motion on an indemnity basis." 'I order that these orders be entered forthwith.']