Rights of a mortgagee dispossessed of land

27 August 2018
Annette Gaber, Partner, Melbourne

If you are a mortgagee, or acting for one, you may encounter a situation where you have obtained judgment against a mortgagor for possession of land and, after executing a warrant of possession to gain vacant possession, the mortgagor and/or their associates have unlawfully re-entered the property.

In a recent Supreme Court of Victoria case[1] the Honourable Associate Justice Mukhtar confirms the Court’s jurisdiction to grant a further warrant of possession to remove any person who has unlawfully re-entered possession, as well as grant a restraining order prohibiting further entry.

Background

  • On 12 August 2016, the plaintiff mortgagee obtained judgment against the defendant mortgagor for, amongst other things, possession of the mortgaged property.
  • In April 2017, a warrant of possession was issued by the Court at the request of the plaintiff.
  • In July 2017, the Sheriff executed the warrant and the plaintiff obtained possession of the property.
  • In August 2017, the plaintiff discovered that the locks at the property had been changed and there was evidence that the defendant and her husband, who was not a party to the proceeding, had re-entered the property.
  • In October 2017, the plaintiff filed a summons seeking orders that:

– the Court issue a further warrant of possession; and

–  the defendant and her husband be restrained from making any attempt to re-enter and remain on the property, or to interfere with the plaintiff’s power of sale.

Further warrant of possession

In granting the plaintiff’s application for a further warrant of possession, Mukhtar AsJ referred to his earlier decision in Field[2]. In that case, his Honour observed that the combined effect of s 3(5) of the Supreme Court Act 1986 and r 66.03(a) was that a judgment for possession could only be enforced by a warrant of possession. As such, it was determined that it was undesirable for the Court to create a new species of warrant, such as a warrant of restoration or warrant of restitution (which had been granted in a similar situation in another case).  Instead, as the judgment for possession was valid and still subsisted, the original judgment formed the legal basis for the Court issuing another warrant of possession.  As there is no provision in the Rules which govern the situation, in granting leave to the plaintiff to file another warrant of possession in Field, Mukhtar AsJ relied on rule 1.15 which permits the Court to determine what procedure may be adopted where the manner or form of procedure is in doubt.

Restraining orders

Rule 66.15(1) permits the Court to make any order it thinks fit in aid of enforcement of a warrant and, for that purpose, may order any person, whether or not a party, to do or abstain from doing any act.

Rule 66.15(2) provides that an application for an order under r 66.15(1) ‘may’ be made by the Sheriff.

Mukhtar AsJ construed r 66.15(2) as being purely permissive and not exclusive to the Sheriff, so that it enabled the plaintiff to apply under this rule for orders aiding enforcement of the warrant. It was also noted that, if there was any doubt about the availability of r 66.15 to deal with the wrongdoing, then the same orders could be made in exercise of the Court’s inherent jurisdiction.

As the defendant and her husband were acting in defiance of a court order, it was considered that the restraining order sought by the plaintiff ought to act as a deterrent against the defendant and her husband.

Concluding remarks

If you are a mortgagee who has been dispossessed of a property after obtaining a judgment for possession and after having executed a warrant, you have the ability to regain possession.  As a first step, you could enquire with the police to ascertain if they are able to assist. If the police are unable to assist, this Supreme Court decision of Mukhtar AsJ confirms your right to go back to court to obtain a further warrant of possession, as well as a restraining order preventing the person(s) from re-entering. Such orders can be obtained by filing a summons in the original proceeding supported by affidavit evidence proving the unlawful entry and, ideally, identifying the persons who have dispossessed you of the property.

A breach of a restraining order can give rise to proceedings for contempt of court, provided certain requirements of the Court’s Rules are met, the punishment for which can include imprisonment.


[1] 2017 VSC 663.
[2] 2010 VSC 445.

Authored by: 
Annette Gaber, Partner
Sarah Rogers, Lawyer

This update does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.

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