I am proposing to deal with each of the three matters listed for hearing today in one judgment.
In each matter, the judgment creditor is seeking two orders. The first order is a direction under s 135 of the Civil Procedure Act 2005 (NSW) ("the Act") authorising the Sheriff to enter certain premises using such force as may be reasonably necessary for the purpose of executing a writ of levy issued in each of the proceedings under s 106 of the Act. The second order sought is an order extending the life of the writ, which will otherwise soon expire, until 14 September 2024.
In the matter of Lewis v Doyle (2018/00200890) judgment was entered in favour of the judgment creditor against the judgment debtor on 18 February 2022 in the sum of $1,353,850: see Lewis v Doyle [2022] NSWSC 92. A gross sum cost order was made on 27 April 2022 in the sum of $255,000: see Lewis v Doyle (No 2) [2022] NSWSC 447.
A writ of levy was issued on 7 November 2022 to enforce the judgment by way of levying the property of the judgment creditor, up to the full amount of the judgment and costs of $1,608,850 plus interest and execution costs. On the same day, the Sheriff wrote to the judgment debtor at his Sans Souci address advising him of pending enforcement action. Execution was unsuccessfully attempted on 11 November 2022, and on the same day, the Sheriff advised the plaintiffs' solicitors by way of notice of non-levy. Relevantly, the Sheriff advised the plaintiffs' solicitors to the following effect.
"The officers were unable to make contact with the judgment debtor or any occupant at the time of attendance. Found a large metal security gate locked at the end of the driveway leading to house entrance. At this stage we are not able to ascertain that the judgment debtor resides at this given address or owns any assets there. A calling card was left at the given address. Attempt was made to make enquiries to no avail."
I interpolate, as will appear from what followed, I can safely infer that the judgment creditor and his attorney occupy the premises and were probably present at the time the sheriff attempted to execute the writ. In any event, the notice of motion seeking relief under s 135 was filed on 6 December 2022 and given the events which have occurred in this matter, the notice of motion seeking to extend the life of the writ was filed on 15 September 2023.
In the matter of AA v PD (2021/00155673) judgment was entered in favour of the judgment creditor on 5 August 2022 in the sum of $217,550: see AA v PD [2022] NSWSC 1039. The writ of levy under s 106 was issued on 10 November 2022. The unsuccessful attempted execution occurred on 21 November 2022, and the motion seeking relief under s 135 was filed on 8 December 2022.
A notice of attempted levy was also sent to the plaintiffs' solicitors, advising of the unsuccessful attempt, in terms materially the same as those in the Lewis matter. The motion seeking an extension of the life of the writ, as I am putting it, was filed on 14 September 2023.
In matter PP v DD (2018/00204001) judgment was entered in favour of the judgment creditor in the sum of $1,273,125 on 15 October 2021: see PP v DD (No 2) [2021] NSWSC 1312. A gross lump sum costs order in the sum of $213,000 was made on 23 November 2021. An appeal commenced by the filing of a notice of appeal on 23 February 2022 was dismissed by consent on 27 May 2022: see DD v PP [2022] NSWCA 98.
The writ of levy under s 106 was issued on 24 October 2022 for the total amount of judgment and costs in the sum of $1,488,821, together with interest and execution costs. Execution was unsuccessfully attempted on 28 October 2022 and 11 November 2022, and a notice of non-execution was forwarded at about the same time in substantially the same terms as those I have referred to in the Lewis matter.
The notice of motion, seeking relief under s 135, was filed on 8 December 2022, and the notice of motion seeking to extend the life of the writ was filed on 14 September 2023.
Each of the applications was supported by affidavit evidence from solicitors with the firm of Carroll & O'Dea Lawyers acting for each plaintiff. I need not refer to each of the affidavits which were read individually as they appear adequately from the transcript of the hearing. Although evidence was read in each case, bearing in mind the chronological details that I have referred to, I accept the submission of Mr Brown of counsel appearing for each plaintiff that substantially the evidence is identical. I will refer only to so much of the relevant evidence as I was taken directly as is necessary to explain my decision.
It is necessary, however, for me to refer to the nature of the relief sought. So far as is material for present purposes, s 135 of the Act is in the following terms:
"(1) the Court may, by order, give directions with respect to the enforcement of its judgments and orders.
(2) without limiting subsection (1) the Court may make any of the following orders:
(a) an order authorising the sheriff to enter premises for the purpose of taking possession of goods under a writ of execution.
…"
Mr Brown pointed out that the Court's power to make an order under s 135 is regulated by the provisions of r 39.52 Uniform Civil Procedure Rules 2005 (NSW). That rule is in the following terms:
"An order under 135(2)(a) of the Civil Procedure Act 2005 may not be made in respect of any goods unless the Court is satisfied:
(a) that, while attempting to seize the goods, the sheriff has been refused entry to the premises where they are believed to be, or
(b) that there were special circumstances that justify the making of such an order."
I am well satisfied on the balance of probabilities that r 39.52(a) is engaged, and that the sheriff has in the relevant sense been refused entry to the premises. In that regard, I rely upon the following facts which are well established by the evidence read in each case. From page 33 of the court book, it is apparent that, in response to a telephone enquiry by Mr Thomas Felizzi, solicitor of Carroll & O'Dea, the Sheriff emailed him on 25 January 2023, stating that the officers who attended to execute the writ had been unable to make contact with the occupant of the Sans Souci premises over the intercom. I infer that that is an intercom by way of a doorbell which, as the name suggests, enables a visitor to speak to the occupant at the occupant's option without the occupant admitting the visitor to the curtilage of the premises. It was also stated that the officers were unable to reach the front door of the premises due to a locked gate.
The Sheriff officer writing the email, Senior Sergeant Natasha Cubric, pointed out that the officers are not permitted to enter the premises without the permission of the occupant, I infer, absent an order under s 135. I should say it is apparent to me from the evidence generally in these proceedings that both the judgment creditor and the person who has his power of attorney, Mr Barbeliuk, reside at the premises ordinarily.
Following the unsuccessful attempts at execution of the writs of levy, Mr Barbeliuk wrote to, inter alia, Mr Robert Algie, a partner at Carroll & O'Dea, by letter dated 6 February 2023. The letter was headed by reference inter alia to each of the three matters with which I am dealing today. In part, it states as follows:
"[Mr Doyle] lives in his primary place of residence alone, save for medical and/or for general functioning assistance - ... (Sans Souci home)."
Mr Barbeliuk went on to say that he and the judgment creditor were aware of the attempts taken by the Sheriff to execute writs of levy on 26 October 2022, 17 November 2022, 3 December 2022, 9 December 2022, 21 December 2022, and 23 December 2022. Except for the last date, Mr Barbeliuk was aware that, on each occasion, attempts had been made to either execute the writ or re-serve it. On the last occasion, 23 December 2022, he was aware that documents had been served, being the motions filed in the Supreme Court seeking leave under s 135, I infer with which I am dealing today.
The letter went on to say that all communications must be directed to him by email, and called upon Carroll & O'Dea to immediately "cease and desist from" inter alia physically attending and/or having any third party attend at the Sans Souci home to serve any/all documents directly on Mr Doyle. I infer the reference to a third party is a reference to the sheriff. Finally, the letter concluded:
"If you do not cease and desist from the activities above, we will be forced to take appropriate legal action against your clients and/or firm seeking damages available, coupled with formal court orders preventing such unsociable conduct. Should this course be forced, I unilaterally put your clients and firm on notice for costs any applications in the Supreme Court of New South Wales and/or Federal Circuit and Family Court of Australia covering the various matters (sic)."
For completeness, I record that Mr Algie responded by letter dated 20 January 2023. Mr Algie pointed out that the attendance of the Sheriff will be necessary until Mr Doyle cooperates with the legal process, including with the Sheriff's attempts to serve process. He invited Mr Barbeliuk and Mr Doyle to contact the Sheriff's office to agree a time when the Sheriff could attend and execute the writ. I infer that no such arrangements were made.
I am satisfied from those facts, which as I have said, are replicated in the other matters that the Sheriff has been refused entry, and that the condition imposed upon the making of an order under s 135 by r 39.52(a) has been met.
Mr Brown of learned counsel also relied upon para (b) of the rule relating to special circumstances. It does seem to me that there is much to be said for the conclusion that there has been a conscious course of conduct engaged in since the writs were issued to avoid the service and execution of legal process, and to delay the enforcement of the judgments of this Court lawfully and duly made. And that absent a refusal of entry, the various circumstances informing that conclusion would constitute special circumstances. But given the clear evidence in relation to what must at least be regarded as a constructive refusal to allow the Sheriff entry to the premises, it is unnecessary for me to make any definite conclusion in that regard.
I should say, if I have not done so already, that from the detail contained in Mr Barbeliuk's letter of 6 January 2022, it is obvious that at least Mr Doyle, if not Mr Barbeliuk, was home on each occasion the sheriff attempted to execute a writ in one or other of the matters. I am driven to this conclusion by the detail in Mr Barbeliuk's letter. It seems to me he could only know all of that detail were that so. From all the circumstances established by the evidence, I infer that either he, if he was at a home at the time, or Mr Doyle, simply refused to answer the intercom when the sheriffs rang the doorbell.
Mr Brown also points out to me, as he is bound as counsel to do, that an order under s 135 is discretionary. In that regard, it is relevant for me to record that I have been informed, as I recorded in a judgment earlier today refusing an adjournment of these applications, that there is an appeal in each of the three matters from the judgment of the common law division listed for hearing before the Court of Appeal on 17 November 2023. As I discussed with Mr Brown during the hearing, it may be that an imminent appeal would be a reason why a judge may refuse to make an order under s 135. After all, were the appeal to be successful, a great inconvenience may be caused if in the meantime the writ was executed, notwithstanding the legal entitlement of the judgment creditors to have the fruits of their victories. But in this case, however tempting that position might be, it is important for me to point out that a number of applications in relation to the appeal in each matter were heard and determined by Griffiths AJA in the Court of Appeal in June of this year. The hearing occurred on 20 June 2023, and his Honour's decision was given on 22 June 2023: DD v AA; DD v Lewis; DD v PP [2023] NSWCA 140.
Specifically, and relevantly for present purposes, his Honour refused a stay of execution in each case. His Honour, having weighed and assessed the competing factors, concluded that, in the peculiar circumstances of the present cases, the entitlement of the judgment creditors to the fruits of their litigation outweighed the other relevant considerations informing the exercise of the Court of Appeal's power to grant a stay. Given there has been no appeal from that order of a single judge of the Court of Appeal, it seems to me that were I to refuse the relief sought, given the circumstances as I have found them to be, I would be acting in dereliction of my duty and in defiance of the Court of Appeal's refusal to grant a stay of proceedings. In effect, I would be doing indirectly what the Court of Appeal refused to do directly, and in my opinion, that would be contrary to the interests of justice in the case.
There is no other matter which suggests that my discretion should be exercised to refuse relief in the present cases. In my judgment earlier today I explained why I have concluded that there is no evidence that the judgment debtor is now or has previously been under a legal incapacity; nor was I persuaded that there should be a further opportunity to obtain legal advice, given the history of the protestations over the life of the proceedings that the judgment debtor was on the verge of retaining counsel to appear in the matter. In my judgment, the relief sought in each motion in each case should be granted.
In matter number 2018/00200890, Lewis v Doyle, I make the following orders:
1. Under s 135 Civil Procedure Act 2005 (NSW), the Sheriff is authorised to enter the premises located at 89 The Promenade, Sans Souci NSW for the purpose of taking possession of goods under a levy on the property of Phillip William Doyle, dated 7 November 2022.
2. Under r 39.20 Uniform Civil Procedure Rules 2005 (NSW), the writ of levy dated 7 November 2022 is renewed with an expiration date of 14 September 2024.
3. The judgment debtor to pay the judgment creditor's costs.
In matter number 2018/00204001, Miles v Doyle, I make the following orders:
1. Under s 135 of the Civil Procedure Act 2005 (NSW) the Sheriff is authorised to enter the premises located at 89 The Promenade, Sans Souci NSW for the purpose of taking possession of goods under a levy on the property of Phillip William Doyle, dated 24 October 2022.
2. Under r 39.20 of the Uniform Civil Procedure Rules 2005 (NSW), the writ of levy dated 24 October 2022 is renewed with an expiration date of 14 September 2024.
3. The judgment debtor to pay the judgment creditor's costs.
In matter number 2021/00155673, AA v PD, I make the following orders:
1. Under s 135 of the Civil Procedure Act 2005 (NSW), the Sheriff is authorised to enter the premises located at 89 The Promenade, Sans Souci NSW for the purpose of taking possession of goods under a levy on the property of Phillip William Doyle dated 14 November 2022.
2. Under r 39.20 Uniform Civil Procedure Rules 2005 (NSW), the writ of execution dated 10 November 2022 is renewed with an expiration date of 14 September 2024.
3. The judgment debtor is to pay the judgment creditor's costs.
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Decision last updated: 31 October 2023