Plaintiff v Defendants

2 Under s 3(3) of the Supreme Court Act 1986, "A judgement in any proceeding must be enforced in accordance with Chapter I of the Rules of the Supreme Court and not otherwise."

3 In this case, on 28 April 2010, the Court gave a judgment that the plaintiff recover possession on mortgaged land ("the land") known as 24 Belmont Street, Preston, or Preston West.

4 Rule 66.03(a) states that a judgment for possession of land maybe enforced by a warrant of possession.

5 On 12 May 2010, the plaintiff issued a warrant of possession to the sheriff which gave the sheriff a warrant to enter the land and cause the plaintiff to have possession of it. Under s 20 of the Sheriff Act, the sheriff is empowered, in accordance with that warrant, to enter the land for the purpose of taking possession.

6 On 21 September 2010, the sheriff executed the warrant, gave possession to the plaintiff, and departed. Thus, execution was complete. But, the second defendant has since re-entered or re-taken possession of the land and will not surrender possession. Putting to one side the possible availability of proceedings for contempt of court, or a civil or criminal proceeding in trespass, the question is whether the Court can give leave to the plaintiff to issue a fresh warrant under the authority of which the sheriff can re-take possession of the land. The plaintiff does not wish to exercise self-help or prolong matters with more Court proceedings.

7 There is no provision in the Rules to deal with this situation. I do not think r 66.15 can be invoked as I do not construe it as being designed to meet this situation. That rule empowers the Court to "make such order as it thinks fit in aid of the enforcement of a warrant of execution". The connotation of that rule, in my view, is that when read as a whole, it does not apply where the warrant has been already been exercised or spent as has occurred here.

8 The commentary in Williams, Civil Procedure Victoria at Volume 1, paragraph [66.03.20] to [66.03.30] states that under the former rules of court, a "writ of restitution" was the appropriate remedy to regain possession in these circumstances. In R v Elliott [1955] VicLawRp 24; [1955] VLR 126, Scholl J determined that in the absence of a rule or practice here, the Court should follow the practice prevailing in the High Court of England, that being the direction given by Order 72 rule 2 of the Rules of Court then in existence. The English practice, his Honour found, was to issue a writ of restitution to restore to possession a plaintiff already put into possession, and subsequently dispossessed by the defendant or a stranger. His Honour decided that such a writ, adapted from court forms, could be issued to the sheriff commanding him to restore to the plaintiff possession of the premises described in the writ.

9 Under the current rules, where the manner and form of procedure in the Court is wanting or in doubt, rule 1.15 permits the Court to determine what procedure is to be adopted, and may give directions. One approach is to follow the English practice as happened in R v Elliott. But, rule 1.15 does not call for adherence to an English practice as was the case in Elliott. Furthermore, I am concerned that s 3 (5) of the Supreme Court Act says that a judgment for possession is enforceable only by a warrant of possession. Care must be taken, even with form, as the problem here involves coercive process and a person's home.

10 I have had drawn to my attention a record of a decision given by a Master of this Court on 21 June 1991 in Citibank Savings Limited v Galanopoulos (No. 5392 of 1990) (BC 910 2983). In that case, the Master followed R v Elliott at least to the extent of directing the prothonotary to issue a warrant designated as a "warrant of restoration". That appellation was used, it was said, to avoid confusion with a "writ of restitution". I have my doubts whether the word "restoration" or "restitution" is an apposite description for a warrant or what is to happen under it.

11 I would take a different course. The judgment for possession is valid and it subsists. The warrant already issued has been completed or, as I say, spent. I see no reason in principle why the judgment should not continue to form a legal basis for the issuing of another warrant of possession. This is a more convenient course than creating a species of warrant not known by the rules of Court, or the Supreme Court Act, or the Sheriff Act. Once the Court's leave is obtained, the plaintiff as the judgment creditor can take the responsibility of preparing and issuing the warrant as a known form in the Court.

12 I do not see another warrant as an abuse of process if it is fulfilling a legitimate purpose. It is not unfairly enlarging any rights which a judgment creditor has, nor does it involve an overreaching of powers as it seeks to do no more than entitle the plaintiff to take action to enforce its judgment. In any case, a newly-issued warrant of possession has the same practical effect as the warrant with the appellation "warrant of restitution" or "warrant of restoration".

13 I would give the plaintiff leave to file another warrant of possession for the land which is the subject of this proceeding.

14 In order to conspicuously distinguish the newly issued warrant from the first one, I suggest that the new warrant state under the heading wording such as "Issued by leave of the Court granted on (date)."

I certify that this and the 4 preceding pages are a true copy of the reasons for judgment of the Honourable Associate Justice Mukhtar delivered on 1 October 2010 (as revised on 19 October 2010).