COLLIER v SENGOS

Court of Appeal (NSW)|1993-08-18|Before: Mauoney JA, Cripps JA, Mahoney JA, Ireland J, Hodgson J, Hulme J, Abadee J, Sheller JA

COLLIER v SENGOS SUPREME COURT OF NEW SOUTH WALES - CouRT OF APPEAL

Mauoney JA, SHELLER JA and Cripps JA 18 August 1993

Mahoney JA. This application comes before the Court on the afternoon of 18 August 1993. It is sufficient to say that the application is an application for a stay of execution of an order or judgment for possession apparently made by Ireland J on 23 July 1993, that a notice of appeal has been filed, that the main ground being urged is that the original summons was not served on Mrs Collier, one of the parties, and that there is no evidence before the Court in support of the application.

Ordinarily it would be sufficient to dismiss the application on that basis. However, in the circumstances of the case and for the purpose of recording information in the case which it may be of assistance to record, I will refer to some of the aspects of it.

The information to which I refer is information in the file. It is not evidence formally tendered in the application. In the absence of evidence being placed before the Court by Mrs Collier, I have taken the liberty ofexamining the file to see whether there may be anything of substance in the application that Mrs Collier is making. I will record some of the material in the file. It may be that I do not record all of the relevant material. But it will be a sufficient statement of it in case the matter has to be considered on another occasion.

It appears that Mr and Mrs Collier own or owned a property at Camden and that the property was mortgaged to Paul Sheridan Sengos, the respondent to the present application. The papers suggest that Mr Sengos attempted to take possession of the property but because of dogs that were on the property he was not able to do so peaceably. He therefore took out a summons dated 3 May 1993 seeking possession of the property.

SECOND DEFENDANT: That is not correct, there were no dogs there on 3 May.

MAHONEY JA: Mrs Collier I will have to ask the officer to remove you from the Court unless you behave yourself.

It appears from the papers that on 2 June 1993 the matter came before Hodgson J (whether in that proceeding or otherwise) to seek amongst other things an interlocutory injunction restraining Mr Sengos from selling the property. The interlocutory application was refused and the matter was stood over to the Duty Judge in terms of the judge's judgment.

Subsequently on 26 June 1993 it appears that a motion by the defendants was made in the proceedings for a stay of proceeding. The Master's judgment in the matter (being Master Malpass" judgment of 23 June 1993) records that Mr Collier the first defendant on that occasion admitted the execution of the mortgage and default under it and the Master recorded that itwas not disputed that the plaintiff was entitled to an order for possession of the premises. The application was for a stay of proceeding and that application was refused.

On 14 July 1993 an application apparently came before Hulme J again claiming an interlocutory injunction and apparently other relief and that application was refused.

On 23 July 1993, as appears from the terms of the notice of appeal, Ireland J apparently gave judgment for possession against Mr and Mrs Collier.

On 12 August 1993 a notice of appeal was filed. On 13 August 1993 an application came before Abadee J in relation to the matter. Apparently his Honour was asked to make an order for stay of the judgment pending the determination of the appeal. I say 'apparently' because that is the inference I draw from the transcript of the proceedings before his Honour on 13 August 1993. His Honour, having heard Mrs Collier at length, on that occasion said this:

On the understand, and accepting the statement of Mr and Mrs Collier that she at least would have a solicitor available to appear for her on Monday in support of her application for a stay of execution of the writ of possession and on that understanding alone I will adjourn this matter to be listed before the Duty Judge on Monday. I would also add that prior to making this order I heard extensive submissions from Mrs Collier in support of the application for an extension of the stay. It was not until I intimated that I was not disposed to continue the stay, or order a further stay, did she then indicate that she had taken steps to obtain legal assistance.

In making the orders that I have made in adjourning the matter, I express considerable reservations about this matter and the merits thereof on the materials that have been placed before me. However I will not preclude Mrs Collier, who is a litigant in person, at this stage from pursuing anapplication for further stay on Monday, but on the understanding that she is legally aided on that day, or alternatively on the understanding as she has told me that she will endeavour to be legally aided on that day because if she is not legally aided it will mean that a further application for a stay will have to be made to the Duty Judge. I say nothing more on the merits of the application.

T extend the stay of execution of the writ of possession until 2 pm on Monday but notice of this adjournment be given to the plaintiff and to its solicitors no later than 5 pm today, such notice to be by way of telephone conversation or facsimile, with the plaintiff's solicitors or a representative of the plaintiff's solicitors, and further on Monday the applicant/defendant produce in Court an affidavit of service notifying the plaintiff and the plaintiffs solicitors of the adjournment of this application till Monday.

I am by no means clear as to what time this application will be heard on Monday. I stand the matter over to 2 o'clock on Monday before the Duty Judge."

It appears from what has been said here that an application came before Campbell J on 16 August 1993. There is no documentary evidence before this Court as to what his Honour did. But subsequently on 17 August 1993 an application was made on motion to this Court with a view to obtaining some form of stay. Kirby P then made orders which appear from the terms of the transcript of that day, those orders being made with the concurrence of the other members of the Court.

The matter came before this Court this morning but at the time the matter was called on for hearing there was no appearance for Mrs Collier. The Court therefore disposed of the matter but reserved leave to her to apply to have it re-listed if an appropriate explanation of her default was given. Mrs Collier has filed an affidavit of 18 August 1993 in which she said she arrived at the Supreme Court at 10.20 am today bythe foyer clock but was late at court. She was delayed

at the Law School Library where she had been copying some work for the Court. The Court adjourned a few moments after 10.20 am this morning.

In the circumstances the Court has been reconstituted this afternoon at 2.45 pm to hear an application by Mrs Collier. As I have said no affidavit has been filed in support of the application for the stay. There is no evidence before the Court to support the application for the stay.

The notice of appeal is in the file and I have taken the course of examining it. As I have said, from what has been put to this Court the matter which appears now to be pressed is that Mrs Collier claims that she was not served with the original summons for possession; that is a ground for appeal. However, it would appear she was present during the proceedings before Ireland J and took part in those proceedings. Whether that constitutes a waiver of any irregularities is not a matter for the Court to determine at the present stage. Mrs Collier is, of course, entitled to press on with her notice of appeal should she see fit.

However, what the Court has to determine now is whether there is, in the substance of the matter, any ground for granting a stay of possession. It appears that the dwelling or house on the premises has been affected by fire and it has not been suggested that parties are living in the premises.

In all the circumstances I think this is not a matter in which on any view a case has been made out for a stay of execution. If subsequently proper evidence is available tojustify a stay in accordance with the principles established by this Court then that application can be made in the proper way. But in my opinion there is nothing before the Court at the moment which would justify such a stay. I would propose the application be dismissed with costs.

Mahoney JA. The order is therefore the application is dismissed with costs.

SECOND DEFENDANT: So you are ignoring the facts? Can I have these orders made available because I intend to make an application to the High Court this afternoon.

MAHONEY JA: Mrs Collier has indicated she desires to make an application to the High Court this afternoon. Mrs Collier, you are entitled to take whatever steps the law allows you in relation to that but I think you would be better advised if you sought legal advice in relation to the matter. I am not advising you in relation to your rights and I wouldn't purport to do so. But you are I think wasting your own time and your own energy. I would counsel you to get legal advice so that your position can be made clear. You are entitled to pursue your own remedies but you are not entitled without proper point to bring other parties to the Court thereby occasioning the expenditure of money and time by them. If you want to do anything then get proper legal advice before you waste your own time and energy. Do you understand that?

SECOND DEFENDANT: I understand that and all I can say is that it would help if you read the file adequately because the dogs were nowhere near the house on 3 May.

At a glance

Court

Decision date

Before

Source

Judgment (28 paragraphs)

Parties

Cited By (1)