Australian Executor Trustees Ltd v Pachkovski

In the New South Wales Court of Appeal, Australian Executor Trustees Ltd (the applicant) sought to lift a stay on a writ of possession and set aside a subpoena. The respondent, Pachkovski, had previously obtained the stay of the writ of possession and issued the subpoena. The applicant also sought dismissal of a motion filed by the respondent.

The primary legal issues before the Court of Appeal were whether to lift the stay on the writ of possession, whether to set aside the subpoena, and whether to dismiss the respondent's motion. The court also considered the appropriate costs orders for the various motions.

McColl JA determined that a stay of the writ of possession was not appropriate given there was no dispute as to the liability for the principal sum owing. The court reasoned that continuing the stay would cause prejudice to the applicant. Consequently, the stay was lifted. The subpoena was also set aside. The respondent's motion was dismissed.

The court ordered that the stay of the writ of possession granted by Young JA be lifted, and the subpoena filed on 6 January 2011 be set aside. Each party was to bear their own costs of the motion filed on 20 January 2011. The motion filed on 24 November 2010 was dismissed, with the applicants ordered to pay the costs of that motion.