This decision relates to an application to the Tribunal to issue a writ or warrant to enforce an order for possession in respect of land.
On 3 March 2022 the Tribunal made orders in favour of the applicant under the Agricultural Tenancies Act, 1990 (NSW) (Agricultural Tenancies Act) (March Orders). Those orders included the following:
"1. These orders and directions are made in the proceedings constituted by file no. COM 21/50720 (the application relating to the property at Wilson Avenue Ingleside NSW) and by file no. COM 21/50582 (the application relating to the property at Lane Cove Road Ingleside NSW).
2. By consent, order that pursuant to s 21(1)(i) of the Agricultural Tenancies Act 1990 (NSW) (AT Act), the respondent give to the applicant on or by 5:00 pm 14 March 2022, vacant possession of each of the following properties:
(1) Lot 4, XX Lane Cove Road, Ingleside NSW 2101 (being Lot 4 in Deposited Plan 1044346); and
(2) X Wilson Avenue, Ingleside NSW 2101 (being Lot 2 in Deposited Plan 24637).
3. By consent, order that pursuant to s 21(1)(g) of the AT Act, on or before giving vacant possession in accordance with order 2, the respondent:
(1) remove any property (including animals), rubbish, motor vehicles, caravans and/or materials brought onto either of the properties since 14 January 2020;
(2) make good damage to the properties caused or suffered by the respondent during the term of occupation; and
(3) leave the properties in a neat and tidy state, having regard to the condition of each property at the commencement of the Occupation Licence affecting each property."
The respondent did not deliver up possession of the land and the applicant applied to the Tribunal for the issue of a warrant or writ to enforce the orders.
Following the Registrar of the Tribunal declining to issue a warrant, the applicant applied to the Supreme Court of New South Wales for the issue of a writ of possession by the Court.
On 17 May 2022 the Court declined to issue a writ of possession and made the following orders:
"1. NCAT has power to issue a warrant for possession to enforce the orders made by NCAT in favour of the Plaintiff on 3 March 2022.
2. It is unnecessary for the Plaintiff to make application to the Supreme court for the issue of a writ of possession to enforce the orders made by NCAT under the AT Act."
The Court provided reasons for decision: Mirvac Homes (NSW) Pty Ltd v Noakes [2022] NSWSC 596 (Supreme Court decision).
The Court determined that the power of the Tribunal to issue a warrant for possession arose under s 21 of the Agricultural Tenancies Act. At [37]-[39] the Court said:
37 In my view, ss.21(1)(a) and 21(4)(b) AT Act comprise a sufficient head of power for NCAT to issue a writ or warrant for possession of land arising from proceedings before it where all antecedent orders have been made.
38 To the extent that the express provisions of the AT Act do not extend that far, there is a proper basis to conclude that power ought be implied as being necessary for the proper exercise of NCAT's jurisdiction under the AT Act. Such an implied or incidental power is to do all things as are necessary or reasonably incidental to the performance of the specified functions and powers of the body: Morgan v Commissioner of Police [2012] NSWSC 1141 at [152]. As noted earlier, s.21(4)b) AT Act makes provision for the making of ancillary orders and this power is not to be narrowly confined (see Steak Plains at [31] above).
39 I am satisfied that s.21 AT Act, and (to the extent it is necessary) a power arising by necessary implication, supports a conclusion that NCAT may issue itself a warrant for possession following proceedings determined under the AT Act.
The proceedings were listed for hearing of an application to issue a warrant for possession before me on 24 May 2022. The hearing was listed to be conducted by audio visual link (AVL), the notice of hearing providing details about how each party was to join the hearing.
The Tribunal also made directions to permit the parties to file and serve evidence, including on the issue of whether vacant possession had been delivered up. Documents were filed by the applicant. No documents were filed by the respondent.
At the hearing on 24 May 2022 the applicant was represented by Mr Pokoney of counsel. There was no appearance by the respondent at the appointed time.
Notice of the hearing had been sent to the respondent by post and to the email address recorded by the Tribunal in order 11(b) of the March Orders. I was informed by counsel for the applicant that this was the email address advised by the respondent as her email at the hearing in March. I was also informed by counsel that his instructing solicitors had been in email communication with the respondent as recently as today, an email having been received by the solicitors from the respondent requesting various information concerning the proceedings between the parties at 3:42 AM. That email address was the same as in the March Orders and the same as the address to which the notice of today's hearing had been sent.
I should note that the email correspondence from the respondent to the solicitors indicated that she was "away". However, what this meant was unclear. In this regard I note the postal address to which the notice of hearing was also sent was Malabar whereas the properties, the subject of this dispute, is located at Ingleside.
Be that as it may, no request for an adjournment or any other communications were received by the Tribunal from the respondent concerning the hearing of the matter today.
At the commencement of the hearing the Tribunal was provided with a mobile telephone number for the respondent. Despite the hearing being a "dial in" AVL hearing, the Tribunal attempted to call the respondent on her mobile telephone. There was no answer, the call diverting to voicemail where messages were left.
Having regard to the above, the Tribunal is satisfied that notice of the hearing has been duly given and that the respondent has failed to appear. In the absence of a request for an adjournment or other correspondence from the respondent, the Tribunal is satisfied that it is appropriate to proceed determine the application.
There is evidence from the applicant that the respondent has not delivered up vacant possession of the following properties (Properties), the subject of the March Orders:
1. Lot 4, XX Lane Cove Road, Ingleside NSW 2101 (being Lot 4 in Deposited Plan 1044346); and
2. X Wilson Avenue, Ingleside NSW 2101 (being Lot 2 in Deposited Plan 24637) or otherwise required the orders made by the Tribunal.
That evidence includes a statement of Ms Spain, the solicitor for the applicant, dated 23 May 2022. Her statement included as annexures emails from March 2022 including an email sent on 14 March 2022 where the respondent said:
Please be aware I have given notice that we have not moved out so I don't recommend you access either properties without the warrant".
In addition, there was a statement from Ms Vanderent, an employee of the applicant dated 23 May 2022. She gave evidence that she attended the Properties on 22 May 2022 and that the respondent remains in possession of the Properties.
I am satisfied that possession of the Properties has not yet been delivered up in accordance with the March Orders. Consequently, the applicant remains entitled to enforce the order for possession made under the Agricultural Tenancies Act.
There is an issue concerning who has authority to issue such process.
In addition, an issue arises as to the form of any process which should issue in accordance with the Supreme Court decision. That is, should any enforcement process be in the form of a writ of possession or warrant for possession. While order 1 of the Court refers to a warrant for possession, at [37] of the Supreme Court decision the court concludes the Tribunal has power to issue "a writ or warrant for possession of land".
As the source of power to issue process to enforce the order for possession in the March Orders arises under s 21 and as there is otherwise no power permitting the Registrar to independently issue a warrant on request, consistent with the decision of the Court, in my view the process must be issued by order of the Tribunal.
As to the form of process, the following provisions of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) are relevant.
First, s 25(1) of the NCAT Act permits the Rules Committee to make rules, not inconsistent with the NCAT Act, in relation to practice and procedure to be followed in proceedings in the Tribunal. Schedule 7 of the NCAT Act provides examples of procedural rule making powers. The example in Sch 7 cl 13 states:
13 The means for, and practice and procedure to be followed in, the enforcement and execution of decisions of the Tribunal.
Clearly a rule may be made to prescribe a writ or warrant for the purpose of enforcement and execution of orders of the Tribunal. In the case before me the order to be enforced is the order for possession in the Agricultural Tenancies Act. However, there is presently no rule made by the Rules Committee on this matter of practice and procedure.
Despite the absence of a rule, s 38(1) of the NCAT Act provides:
The Tribunal may determine its own procedure in relation to any matter for which this Act or procedural rules do not otherwise make provision.
Having regard to the Supreme Court decision and s 38 of the NCAT Act, I am satisfied that I can make an order and, by that order, specify the form of process to be issued the purpose of execution.
I have considered whether the form of process should be what the Court referred to as a warrant for possession or a writ of possession. In this regard there is no dispute that if process is issue it is to be enforced by the Sheriff under the Sheriff Act 2005 (NSW) (Sheriff Act).
The powers of the Sheriff when executing writs or warrants of possession of land are set out in s 7A of the Sheriff Act. Section 7A provides:
7A Powers of Sheriff when executing writs and warrants for possession of land
(1) A sheriff's officer executing a writ or warrant for possession of land may do any of the following -
(a) enter the premises and take all reasonably necessary steps to enforce the writ or warrant,
(b) use such force as is reasonably necessary to enforce the writ or warrant,
(c) obtain the assistance of a police officer.
(2) A police officer may, at the request of a sheriff's officer, assist the sheriff's officer to enforce the writ or warrant.
(3) The Sheriff must give the occupier of land subject to a writ of possession of land or a writ for the levy of property that relates to land not less than 30 days notice to deliver up possession of the land.
(4) Subsection (3) does not apply if the execution of the writ has been previously stayed by a court or if a warrant for possession is issued under the Residential Tenancies Act 2010, the Residential (Land Lease) Communities Act 2013, the Retirement Villages Act 1999 or the Holiday Parks (Long-term Casual Occupation) Act 2002.
(5) In this section -
writ or warrant for possession of land means -
(a) a writ of possession of land, or
(b) a writ for the levy of property that relates to land, or
(c) a warrant for possession of residential premises under the Residential Tenancies Act 2010, or
(d) a warrant for possession of residential premises under the Residential (Land Lease) Communities Act 2013, or
(e) a warrant for possession of residential premises under the Retirement Villages Act 1999, or
(f) a warrant for possession of a site under the Holiday Parks (Long-term Casual Occupation) Act 2002.
Counsel for the applicant submitted that, having regard to the language of s 7A of the Sheriff Act, it was appropriate that the form of process should be that of a writ of possession, rather than a warrant for possession. Otherwise, the sheriff may not have relevant powers conferred by that section. I agree with this submission.
Section 7A(5) defines the process to which that section applies. Warrants for possession may be issued in connection with the identified legislation in subclauses (c)-(f). Otherwise, s 7A only applies to a writ of possession of land or a writ for the levy of property that relates to land. In these circumstance, for the purpose of the Agricultural Tenancies Act, and consistent with the Sheriff Act, in my view process for the Sheriff to execute should issue in the form of a writ of possession. This approach is consistent with the form of process which could be issued by a court generally in connection with possession of land: see eg s 104 Civil Procedures Act 2005 (NSW).
Having regard to the above, I will make an order for the issue of a writ of possession.
As there is no form prescribed by the NCAT Act, rules or Agricultural Tenancies Act, the form of the writ will be that set out in the appendix to this decision.
[2]
Orders:
The following order is made:
1. A writ of possession in the form of Appendix A is to be issued and sent to the Sheriff for execution.
I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
Registrar
Notes: Decision amended under s 63 of the Civil and Administrative Tribunal Act 2013 (NSW) to correct the word "warrant" where used in Appendix A to read "writ". Change is in bold text
[3]
APPENDIX A
WRIT OF POSSESSION
PROCEEDING DETAILS
Division Consumer & Commercial Division
File number COM 21/50720 & COM 21/50582
Applicant Mirvac Homes (NSW) Pty Limited
Respondent Nicole Noakes
ORDER DETAILS
Person entitled to possession Mirvac Homes (NSW) Pty Limited
Person to be evicted Nicole Noakes
TO THE SHERIFF OF NEW SOUTH WALES AND ALL SHERIFF'S OFFICERS
[4]
On 24 May 2022 an order was made giving vacant possession of the land at:
Description of land: X Wilson Avenue, INGLESIDE NSW 2101
Lot 4, XX Lane Cove Road, INGLESIDE NSW 2101
[5]
The person entitled to possession has requested that a writ for enforcement of the order be issued on the basis that the order has not been complied with.
The writ authorises any Sheriff's Officer to enter the land and take all steps that are reasonably necessary to give possession to the person entitled.
A Sheriff's Officer may request that any Police Officer assist the Sheriff's Officer to enforce the order for possession.
The Sheriff's Officer or Police Officer enforcing the order for possession must produce this writ if asked.
Pursuant to section 7A(3) of the Sheriff Act 2005 the Sheriff must give the occupier of land not less than 30 days notice unless execution of the writ has previously been stayed.
ISSUING DETAILS
[6]
Writ issued on Tuesday, 24 May 2022
SYDNEY
Issued at Level 14 Civic Tower, 66 Goulburn Street, SYDNEY NSW 2000
GPO Box 4005, SYDNEY NSW 2001
Registrar signature
Issued by
Date writ received by Sheriff
[7]
ADDITIONAL INFORMATION FOR SHERIFF'S OFFICE
Mirvac Homes (NSW) Pty Limited
C/- Dentons, Floor 13, 77 Castlereagh Street
Person entitled to possession details SYDNEY NSW 2000
brooke.spain@dentons.com
02 9931 4741
[8]
Nicole Noakes
C/- 5 Dacre Street
Person to be evicted MALABAR NSW 2036
marleymooks19@gmail.com
0478 041 635
[9]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
[10]
Amendments
31 May 2022 - Title amended
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 31 May 2022