COLLIER v SENGOS

Court of Appeal (NSW)|1993-08-26|Before: Cripps JA, Mahoney JA, Ireland J, Sheller JA

SUPREME COURT OF NEW SOUTH WALES - COURT OF APPEAL

Cripps JA. Before the Court is an application dated 26 August 1993 by Mrs Collier seeking an order staying the further execution of a writ of possession dated 25 August 1993 which has been taken out consequent upon an order for possession of this Court some time previously. Mrs Collier was one of two defendants in the original proceedings and is one of two claimants in these proceedings.

She asks that the further execution of the writ be stayed so that her motion can be heard in this Court on 30 August 1993. That motion is in the file and in it she seeks the following orders: (i) that the decision of this Court on 18 August 1993 be overturned on the ground that Mahoney JA misstated certain facts in the course of giving a decision rejecting the application for a stay and (ii) a stay of the issue of the writ of possession, and that the Court hear the matter instanter.

The question I have to determine in these proceedings, in effect, is whether I order further execution be stayed pending the hearing of Mrs Collier's application to overturn the decision of this Court on 18 August 1993. I was a member of this Court on Wednesday, 18 August 1993 when her application for a stay of execution of an order for possession made by Ireland J on 23 July 1993 was refused.

On that occasion the claimant, Mrs Collier, based her application largely upon the circumstance that she, being one of the two persons entitled to be served, had not been served in the proceedings that were heard by Ireland J.

In the reasons given by Mahoney JA, with which Sheller JA and I both agreed, a short history of the litigation between Mr and Mrs Collier, on the one hand, and Mr Sangos, on the other, was outlined. I apprehend from the affidavit I have read in these proceedings that Mrs Collier wishes to maintain that a statement made by Mahoney JA concerning an event on 3 May 1993 was not correct.

But putting that matter to one side, Mahoney JA set out the history of the matter including the fact that the matter has been before two or three judges of this Court and Master Malpass of this Court, and came to the conclusion, with which Sheller JA and I both agreed, that her application for a stay should be dismissed with costs.

Before this Court and on this motion, Mrs Collier has given evidence to the following effect;] she has filed a motion returnable on 30 August 1993 to overturn the decision of this Court of 18 August 1993. She has also deposed to the fact that on Sunday, 22 August 1993, presumably last Sunday, and on the orders of Mr Sangos, two small trucks went to the subject land and entry was gained by smashing a front door. She also says on Thursday, 26 August 1993, today, the writ of possession was placed on the front window of the subject land and that she was told by neighbours that Mr Sangos intends rebuilding the house in order to rent same.

The judgment of Mahoney JA of 18 August 1993 records the circumstance that the house on the land has been seriously damaged by fire. She says in her affidavit that Mr Sangos has not in the past abided by court directions and last weekend he tried to have two of her dogs removed by the RSPCA. She also said Mr Sangos, through his legal representatives, misled the Court concerning when the Coronial Inquiry will be held concerning, as I assume, the fire at the premises, and that she has been advised that the police think the fire was deliberately lit and neither she nor her husband was in any way responsible.

In essence, what has changed between when this Court declined to order a stay and the present time is this: that the house that is not occupied has been broken into by some person. Mrs Collier obviouslybelieves it to have been done at the instigation of Mr Sangos. The writ of execution which she unsuccessfully sought to stay has in fact been issued.

The question I have to determine is whether in those circumstances I ought to stay any further execution on the writ until Monday when her notice of motion can come before this Court in which she seeks, as she says, to overturn the decision given by the Court of Appeal on 18 August 1993.

lam afraid I have come to the conclusion that the only appropriate order which Iam able to give is to dismiss this application. There is, on my understanding of the circumstances, no merit in the application, no grounds have been made out why this court should order that the writ that has been issued should be further stayed. That matter was debated on the last occasion. The Court declined to grant a stay on that occasion. The statement of Mrs Collier that Mahoney JA made a factual error when relisting the hearing of the matter and before he concluded her application should be dismissed, even if true, is irrelevant. It concerned whether dogs were on the land at some earlier time. Mrs Collier said on the last occasion she was taking the matter to the High Court. I do not know what has happened in that regard. She has come back to this Court. In my opinion, there is no ground for a further stay in the proceedings and, accordingly, the order I make is that the application be dismissed.

(Mr Maddocks made application for costs. Mrs Collier addressed on the question of costs.)

I have heard sufficient, Mrs, Collier, sit down. The order of the Court will be that Mrs Collier pay Mr Sangos" costs of this application.

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