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The plaintiff moves, ex parte, for leave to issue a writ of restitution to restore it to possession of land located in Tinonee, NSW (‘the property’). Leave is required because the issue of that writ “is in aid of another writ of execution”: r 39.1 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’).

Background facts

4. The first and second defendants entered into two written credit contracts with the plaintiff, wherein the plaintiff agreed to advance them the sum of $275,000. The credit contracts were secured by a mortgage over the property.

5. The defendants defaulted in the performance of their repayment obligations, and on 22 June 2021, the plaintiff commenced proceedings by way of statement of claim seeking possession of the property. On 5 May 2023, default judgment was entered. A writ for possession of the property was sought and, on 29 September 2023, the sheriff executed the writ and removed the first and second defendants from the property.

6. Since the defendants were evicted, it appears that there has been some negotiation by them, or on their behalf, seeking to discharge the debts owing to the plaintiff. It is unnecessary to recount the detail of these discussions albeit that they have been set out in the affidavit of Sarah Deen affirmed 2 April 2026, which was read in support of the orders sought.

7. At some – unknown – time between 29 September 2023 and 20 March 2025, the first and second defendants re-entered the property, absent any right to do so. The plaintiff became aware of this in March 2025 when it sought to prepare the property for sale.

8. The evidence establishes that the debt owing, required to discharge the mortgage over the property, has not been paid, nor have any arrangements been made to remedy that.

The writ of restitution

9. The writ of restitution is a supplementary, rather than primary, writ and its function is to assist in satisfying a judgment where satisfaction cannot be obtained by an ordinary writ of execution: Wiltshire County Council v Frazer [1986] 1 All ER 65, 67 (‘Frazer’).

10. Where a defendant wrongfully resumes possession of land after entry by the sheriff – the situation here, as I have found – satisfaction will not have been obtained by the writ of possession. This is the “ordinary circumstance” where this writ issues and the “usual procedure” for restoring a plaintiff to possession: Frazer at 67; Perpetual Limited v Kelso [2008] NSWSC 906 at [19].

11. There is a further condition required to be satisfied in order for this writ to issue: this involves a consideration of “the particular facts” including, as part of that assessment, “the extent of any links between the circumstances of adverse possession now obtaining and those which gave rise to the original court order and its earlier execution”: Frazer at 68; Capital Access Pty Ltd v Charnwood Constructions Pty Ltd [2022] NSWSC 1185 at [19].

12. I am satisfied there is the required nexus. The plaintiff sought, and obtained, the right to possession and, absent any right to possession or occupation, the defendants have subverted that order by re-entering the property.

13. The remaining issue is whether the matter should proceed ex parte. It is to this issue that I now turn.

Proceeding ex parte

14. As a matter of principle, orders in civil proceedings without notice to the other side should not be made unless there is a good reason for departing from the general rule that notice must be given.

15. The general rule is subject to a sufficient indication of any intention of the legislature to the contrary, which the plaintiff essentially argues is the case here. The submission was that, given the writ of execution can be made in the absence of the judgment debtor (r 39.2 of the UCPR), by analogy, it follows that the issue of this writ – which is in aid of the primary writ – can likewise issue in those circumstances: in short, the plaintiff argued that the general rule, requiring notice to be given, has been modified in connection with the issue of this writ, thereby permitting the application to proceed ex parte.

16. Additionally, to support proceeding in this way, the plaintiff relied upon the approach taken in Australia and New Zealand Banking Group Ltd v Rafferty [2018] NSWSC 960 at [12]-[13].

17. In relation to the plaintiff’s application to proceed ex parte and the arguments marshalled in support of doing so, the following should be noted.

18. First, whilst it may be accepted, as the plaintiff submitted, that the Court is empowered to proceed ex parte in circumstances involving the issue of a writ of execution under r 39.2 of the UCPR (and accepting, without deciding, the applicability of that rule by analogical reasoning to the issue of the present writ), the language of that rule is couched in discretionary terms.

19. Secondly, the approach taken in Rafferty, I accept, broadly supports proceeding in the way urged by the plaintiff, although the rationale for dealing with the application ex parte was principally driven by s 56 of the Civil Procedure Act 2005 (NSW), and not by reference to r 39.2 UCPR: at [12]. In any event, the execution of the writ was stayed for a period of 14 days in order to permit the occupiers to “have one final opportunity to approach the Court if they wish to do so”: at [13]. Proceeding ex parte for the issue of a writ of restitution also occurred, it may be noted, in Frazer: at 66.

20. I propose to follow the approach taken in these decisions, with the added safeguard (adopted in Rafferty) of staying the orders that I propose to make for 21 days. The orders that have been proposed by the plaintiff are in conformity with the orders made in that case and in a number of decisions of this Court including Commonwealth Bank of Australia v Maksacheff [2015] NSWSC 1860.

Orders

21. For the above reasons, I make the following orders:

22. The plaintiff is granted leave to move ex parte on its Notice of Motion filed 8 April 2026, seeking a writ of restitution.

23. The plaintiff is granted leave to issue of a writ of restitution to restore to the plaintiff possession of the land comprised in folio identifiers 71/753202, 72/753020, 73/753202 and 74/753020, being all the land situated at and known as XXX, Tinonee in the State of New South Wales 2430 (Property).

24. Execution of the writ of restitution not to be before 25 June 2026, 5:00PM.

25. Order pursuant to rule 40.7 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) that a sealed copy of the Court's judgment in these proceedings of 2 May 2023 be issued with the following endorsement:

“Barry John Brown and Lucie Kay Brown, you are served with a copy of this judgment and you are liable to imprisonment or to sequestration if you do not give possession of the land compromised in folio identifiers 71/753202, 72/753202, 73/753202 and 74/753202, being all the land situated at and known as XXX, Tinonee in the State of New South Wales 2430 (Property) to the Plaintiff, or if you remain upon that Property, of if you re-enter that Property after possession has been delivered to the Plaintiff.”

5. Order pursuant to rule 40.7 of the UCPR that personal service of the endorsement on the first and second defendant be dispensed with.
6. The plaintiff is to serve a copy of this order on the first and second defendant by 17 June 2026, 5:00PM, by:

(a) affixing a sealed copy of the order to the Property or in the event access cannot be gained, in separate sealed envelopes addressed to each of the first and second defendant by name respectively, in the letter box at the Property; and (b) posting a sealed copy of the order to each defendant by prepaid post in separate sealed envelopes addressed to each of them by name respectively to the Property; (c) scanning and sending a sealed copy of the order by email to the second defendant at XXX@gmail.com; (d) sending a text message to the first defendant on mobile number XXX with a message “Important Court documents for you have been sent by post and delivery to [XXX], Tinonee NSW 2430”; and (e) sending a text message to the second defendant on mobile number XXX with a message “Important Court documents for you have been sent by post and delivery to XXX, Tinonee NSW 2430 and by email to XXX@gmail.com”.

7. The first and second defendant pay the plaintiff’s costs of and incidental to this notice of motion on an indemnity basis as agreed or assessed.
8. Grant liberty to apply on 48 hours’ notice to the Associate to Justice Chen, such liberty to be exercised by 22 June 2026, 4:00PM.
9. Orders to be entered forthwith.

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