Ex Tempore Judgment
[Amended in accordance with the principles in Bar-Mordecai v Rotman [2000] NSWCA 123]
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Background
On 11 May 2022 I gave judgment in favour of Misthold Pty Ltd (Misthold), the plaintiff in these proceedings, and dismissed the cross-claim brought by NSW Historic Sites Pty Ltd (Historic Sites): Misthold Pty Ltd v NSW Historic Sites and Railway Heritage Company Pty Ltd (No 2) [2022] NSWSC 561 (Misthold (No 2)). These reasons assume familiarity with that judgment. I found that Misthold is entitled to possession of certain land situated at 170 Wine Country Drive, North Rothbury. That land is owned by Misthold, but at the date of judgment was occupied by Historic Sites.
Shortly before the hearing of the possession proceedings was listed to commence in late February 2022, Historic Sites raised for the first time a contention that there were numerous third parties who were also "occupiers" of the land who had not received notice as they were entitled to under r 6.8 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).
On 21 February 2022, the first day of trial, Historic Sites provided a list (which was marked MFI-1 by me) of 22 individuals or entities which it claimed "occupied" the land, but which had not received notice pursuant to r 6.8. Historic Sites separately identified Rothbury Riot Railway and Steam Museum Group Ltd (Rothbury Riot) as an alleged "occupier" of the land and the "owner" of a shed situated on the land. Rothbury Riot was separately identified because it had been notified of the proceedings in accordance with r 6.8 in 2020. Rothbury Riot was not listed in MFI-1.
On 11 May 2022, I made orders giving judgment for Misthold for possession of the whole of the land in Folio Identifier 11/1137569, being the land situate at 170 Wine Country Drive, North Rothbury but staying the execution of any writ of possession to enforce that judgment to allow the entities identified in MFI-1 to be heard on the question of relief. In making those orders I acted on the joint invitation of Mr Walton SC, who appeared for Misthold, and Mr Deakin QC, who then appeared for Historic Sites. Those orders were:
"(1) Judgment for the plaintiff for possession of the whole of the land in Folio Identifier 11/1137569, being the land situate at 170 Wine Country Drive, North Rothbury.
(2) Grant leave to issue a writ of possession to enforce order 1.
(3) Order that the execution of the writ of possession be stayed until further order of Payne JA.
(4) Direct that the parties take all reasonable steps to serve upon all of the persons and entities referred to in MFI-1 a copy of these orders and reasons for judgment by 4pm on 13 May 2022.
(5) Direct that any person or entity referred to in MFI-1 seeking to be heard about the time the writ of possession should be stayed file any evidence and written submission by 8 June 2022.
(6) Stand over the matter to 2pm on 15 June 2022 for making any orders relating to any issues raised by persons or entities who have filed evidence and submissions in accordance with order 5 of these orders. I direct that any person or entity seeking to be heard as to relief appear with a legal representative at 2pm on 15 June 2022.
(7) Dismiss the claims for relief made by the Further Amended Statement of Cross-Claim dated 1 February 2022.
(8) The defendant / cross-claimant pay the plaintiff / cross-defendant's costs."
Due to competing court commitments, on 19 May 2022 I made orders varying the date for hearing in order 6 to 17 June 2022 and directing the parties to notify the persons and entities in MFI-1 of that amendment.
On 17 June 2022, Mr Richards, who is not legally qualified and who appeared that day for Rothbury Riot, attempted to read an affidavit sworn by him on 8 June 2022 relating, in effect, to an entirely separate application, which application (not in fact supported by any initiating process) was inconsistent with my orders of 11 May 2022. A further affidavit of Mr Richards, who also appeared for The Spirit of the Hunter Pty Ltd (Spirit of the Hunter), sworn by him on 8 June 2022 on behalf of that organisation was also sought to be read. That affidavit too did not deal with the limited question of relief but rather sought to support some hypothetical Rothbury Riot application. I reject both affidavits for the following reasons.
Mr Richards is a director of both Rothbury Riot and Spirit of the Hunter. Critically, he is also a director of Historic Sites. Neither Rothbury Riot nor Spirit of the Hunter is referred to in MFI-1. Both entities have had ample notice of the proceedings by Misthold for possession of the land.
Notwithstanding the fact that order 5 does not encompass either Rothbury Riot or Spirit of the Hunter, I granted leave to each entity to make an application, and to file any evidence or submission in support of that application by 4pm on 14 June 2022. I conveyed those orders by email from my Associate on 9 June 2022:
"Dear the directors of Rothbury Riot Railway and Steam Museum Group Ltd and the directors of The Spirit of the Hunter Pty Ltd
I have shown to his Honour the 2 affidavits dated 8 June 2022 sworn by Christopher Richards, which were sought to be filed in these proceedings on behalf of Rothbury Riot Railway and Steam Museum Group Ltd and The Spirit of the Hunter Pty Ltd.
The orders made by the Court do not apply to these two entities. Those orders were limited to the bodies identified in MFI-1 as follows:
(5) Direct that any person or entity referred to in MFI-1 seeking to be heard about the time the writ of possession should be stayed file any evidence and written submission by 8 June 2022.
For reasons explained in the judgment of the Court, neither Rothbury Riot nor Spirit of the Hunter are entities referred to in MFI-1. His Honour does not at present propose to permit either Rothbury Riot or Spirit of the Hunter to appear at the hearing on Friday 17 June 2022 and does not accept that the affidavits are properly before the Court.
If Rothbury Riot and/or Spirit of the Hunter seek in any way to be heard on 17 June, his Honour notes that pursuant to r 7.1 of the Uniform Civil Procedure Rules 2005 (NSW) those companies can only can only carry on proceedings by a solicitor or a director of the company. If proceedings are carried on by a director, pursuant to r 7.2 that director is required to file an affidavit as to his or her authority to act in that capacity, together with a copy of the instrument evidencing that authority. The affidavit must also contain, inter alia, a statement to the effect that the director is aware that he or she may be liable to pay some or all of the costs of the proceedings.
Any lawyer appointed by Rothbury Riot and/or Spirit of the Hunter who wishes to make any application in the proceedings should file and serve any application, evidence and submissions identifying the legal basis of any application and orders sought by 4pm on Tuesday 14 June."
No application was made by either entity. No relevant evidence or submission concerning the sole subject of today's hearing, being the time at which the stay of execution of the writ of possession should be lifted, was filed by either Rothbury Riot or Spirit of the Hunter. How it was that Rothbury Riot had any arguable interest in land, in circumstances where the whole of the relevant land was leased by Misthold to Historic Sites in 2007 and again in 2012 was nowhere explained in either of Mr Richards' affidavits.
Neither of Mr Richards' affidavits addresses the subject of relief but rather asserts that Rothbury Riot has some interest in the land inconsistent with the terms of order 1 made by me on 11 May 2022. If Rothbury Riot is permitted to advance such a claim in the circumstances of this case, whether in fresh proceedings or otherwise (a topic about which I have significant doubts, see, for example, Yeshiva Properties No 1 Pty Ltd v Lubavitch Mazal Pty Ltd (No 2) [2003] NSWSC 752), a hearing about the terms of relief of the present kind is not the occasion to consider any such claim.
Rothbury Riot had actual and constructive notice of the substantive proceedings commenced by Misthold from the beginning and made a deliberate decision not to advance in those proceedings the claim it now apparently seeks to advance. Rothbury Riot had detailed actual knowledge of the proceedings from the time they were commenced in 2020. Given the common directorship with Historic Sites and the very considerable steps taken to accommodate Rothbury Riot as detailed in my May 2022 judgment, the attempt by Rothbury Riot, under the guise of advancing submissions about relief, to advance a claim inconsistent with orders made after a full hearing on the merits of Misthold's possession claim should not be permitted.
The proceedings between Misthold and Historic Sites about Misthold's claim for possession of the land are complete, save for a determination of the time at which the stay on the execution of the writ of possession should be lifted.
For these reasons I reject the affidavits of Mr Richards sworn on 8 June 2022 on behalf of Rothbury Riot and Spirit of the Hunter.
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Decision last updated: 24 June 2022
Parties
Applicant/Plaintiff:
Misthold Pty Ltd
Respondent/Defendant:
NSW Historic Sites and Railway Heritage Company Pty Ltd