O.R. Smee Pty Ltd (in liquidation) v Calkin [2023] NSWSC 1306

O.R. Smee Pty Ltd (in liquidation) v Calkin [2023] NSWSC 1306

Because the Plaintiff was the registered proprietor, the evidence showed no licence, tenancy agreement or other lawful entitlement for the Defendant to occupy the property, and the Defendant accepted he had no legal basis to remain, he was a trespasser. The Plaintiff was therefore entitled to vacant possession, injunctive relief restraining interference with possession and leave to issue a writ of possession, with the operative orders stayed for the agreed period to allow removal of goods.

Jurisdiction
Australia
Judgment Date
03 November 2023
Procedural Posture
Trespass to Land Claim Seeking Vacant Possession, Injunction, Leave to Issue a Writ of Possession and Damages for Trespass / Principal Judgment After Hearing; Agreed Orders Made, With Mesne Profits and Costs Listed for Directions
Outcome
Orders for vacant possession, an injunction and leave to issue a writ of possession made; orders stayed until 12 am on 1 January 2024; mesne profits and costs listed for directions.
Legal Topics
['trespass to Land' 'possession of Land' 'vacant Possession' 'injunctive Relief' 'writ of Possession' "liquidator's Control of Company Property" 'uncollected Goods']
['torts' 'property Law' 'civil Procedure' 'corporations'] ['trespass to Land' 'possession of Land' 'vacant Possession' 'injunctive Relief' 'writ of Possession' "liquidator's Control of Company Property" 'uncollected Goods']

Case Brief

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Procedural Posture

Trespass to Land Claim Seeking Vacant Possession, Injunction, Leave to Issue a Writ of Possession and Damages for Trespass / Principal Judgment After Hearing; Agreed Orders Made, With Mesne Profits and Costs Listed for Directions

Legal Issues

  1. 1 ["Whether the Defendant had any present legal right to enter, occupy or remain on the Plaintiff's property." 'Whether the Plaintiff was entitled to orders for vacant possession, an injunction restraining interference with possession and leave to issue a writ of possession.' 'Whether damages or mesne profits and costs should be dealt with later after the property was vacated.']

Ratio Decidendi

Because the Plaintiff was the registered proprietor, the evidence showed no licence, tenancy agreement or other lawful entitlement for the Defendant to occupy the property, and the Defendant accepted he had no legal basis to remain, he was a trespasser. The Plaintiff was therefore entitled to vacant possession, injunctive relief restraining interference with possession and leave to issue a writ of possession, with the operative orders stayed for the agreed period to allow removal of goods.

Court Disposition

Orders for vacant possession, an injunction and leave to issue a writ of possession made; orders stayed until 12 am on 1 January 2024; mesne profits and costs listed for directions.

Orders

  • ['Subject to order 4, the Defendant and any other person in occupation of, or present on, the Property give vacant possession to the Plaintiff immediately.' "Subject to order 4, the Defendant be restrained from attempting to interfere with the Plaintiff's possession of the Property." 'Subject to order 4, leave to...