Grayridge Pty Ltd v Sheriff of the State of Victoria [2000] VSC 446

11. On 5 July 2000 the plaintiff caused a warrant of possession to be issued out of the court and forwarded to the sheriff for execution.

14. Cousins did not avail herself of the opportunity given to her by the Court of Appeal, but instead made an application for a stay of the order for possession to the Practice Court.

17. The application came before me on 24 August 2000. As I considered that there was no sound basis upon which I could exercise any discretion I may have possessed to stay the order of O'Bryan, J., I dismissed the application. In that regard I was influenced by a number of matters, not the least of them being the fact that Cousens was not in occupation of the property and the fact that the longer the delay the plaintiff faced in gaining possession of the property the greater would be the financial loss ultimately suffered by it.

20. On some unspecified date but prior to 31 August, Cousens' solicitors filed an application for special leave to appeal in the High Court. On 31 August the solicitors for Cousens filed a chamber summons in the High Court seeking (inter alia) an order staying execution of the warrant of possession.

23. As yet no date has been fixed for the hearing of the chamber summons or the application for special leave to appeal.

26. The sheriff has informed the solicitors for the plaintiff that he does not intend to execute the warrant of possession until such time as Cousens' applications to the High Court have been heard and determined.

29. On 5 September 2000 the plaintiff's solicitors filed an originating motion in this court naming as defendant the Sheriff of the State of Victoria and by which the plaintiff seeks an order in the nature of mandamus directing the sheriff to execute the warrant of possession.

32. It is that originating motion which is presently before me.

35. The functions of the sheriff are prescribed by sec.115 of the Supreme Court Act 1986, the relevant sub-section of which reads:

"115(1) In addition to all other acts and duties required to be done by the sheriff by this or any other Act the sheriff must - (a) execute and return all warrants and other process directed to the sheriff in the same manner (subject to any necessary modifications) as similar process was executed and returned, and as such acts and duties were done or required to be done, by the sheriff immediately before the commencement of this Act."

39. Rule 68.08 of the Supreme Court Rules provides that a warrant of execution shall be in Form 53B, 68A, 68B or 68C, whichever is appropriate.

42. Form 68B is the appropriate form in the present case. It provides for a recitation of the judgment in question in the warrant and then commands the sheriff to enter the land the subject of the order for possession and cause the person in whose favour the order was made to be given possession of it.

45. And so the Supreme Court Act contains a mandatory requirement that the sheriff execute a warrant for possession issued out of the court and the warrant itself commands him to do so.

48. In para.428 of Volume 17 of the 4th Edition of Halsbury the authors state:

"The writ is the sheriff's justification for the acts done under it, and he is not bound to execute it unless it is in proper form and properly endorsed; but if the writ is regular he is bound to execute it without question, and it gives him an absolute justification for all acts done under it, even though the judgment is afterwards set aside." (The emphasis is mine.)

52. In my opinion the fact that Cousens has filed the applications she has in the High Court Registry is no justification for the sheriff refusing to execute the warrant or, for that matter, delaying its execution.

55. Cousens' legal advisers were invited by the Court of Appeal to make an application for a stay to that court, it being the appropriate court to deal with the matter. See Jennings Construction Limited v. Burgundy Royale Investments Pty Ltd (1986) 161 C.L.R.681, per Brennan, J., as he then was, at p.684. They declined to do so. They chose instead to file the two applications they have in the High Court. According to the calculations of counsel for the plaintiff the application for special leave to appeal is some six weeks out of time.

58. One has the distinct impression that Cousens and her legal advisers are simply adopting delaying tactics with a view to embarrassing the plaintiff.

61. In the circumstances I direct that the sheriff now execute the warrant of possession.

64. As I consider that the costs of this proceeding have been properly incurred by the plaintiff and the sheriff in connection with the execution of the warrant, I order that the costs of the plaintiff and the sheriff of this proceeding be recovered by them from the proceeds of the sale of the property. Such costs will include the costs incurred by the parties on the various days that this proceeding has been before the court.