Commonwealth Bank of Australia v Maksacheff

[2015] NSWSC 1860

Supreme Court

New South Wales

Medium Neutral Citation:	Commonwealth Bank of Australia v Maksacheff [2015] NSWSC 1860
Hearing dates:	4 December 2015
Decision date:	04 December 2015
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	See paragraph 14
Catchwords:	REAL PROPERTY – application for writ of restitution – steps taken by defendant to subvert writ of possession – leave granted for the issue of writ of restitution to restore the plaintiff's possession of the land
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 40.7
Category:	Principal judgment
Parties:	Commonwealth Bank of Australia (Plaintiff) Daniel James Maksacheff (First Defendant) Agnieszka Iwona Maksacheff (Second Defendant)
Representation:	Counsel: R Lewin (Solicitor) (Plaintiff)   Solicitors: Gadens Lawyers (Plaintiff)
File Number(s):	2015/158687

Judgment (EX TEMPORE – REVISED)

Introduction

1. The plaintiff applies for a writ of restitution in respect of certain land known as 59 Lawson Road, Panuara in the State of New South Wales.

The background

2. The first and second defendants are registered proprietors of the Property. On 14 July 2015 judgment for possession was entered in favour of the plaintiff against the first and second defendants in respect of the Property. The plaintiff's rights depend on a mortgage granted by the defendants to secure a debt which remains due and payable.

3. On 27 July 2015 a writ of possession was issued in respect of the Property. On 11 August 2015 the Sheriff of New South Wales issued a Notice to Vacate and scheduled an eviction for 9 October 2015.

4. Ultimately, the eviction did not proceed on that day because of the Sheriff’s apprehension that there may be violence and that the police should accompany the Sheriff when enforcing the writ of possession.

5. The eviction was rescheduled for 30 October 2015, on which day the Sheriff executed the writ of possession and placed the plaintiff into possession of the Property. At the time of the eviction, the plaintiff made arrangements for a locksmith to change the locks at the Property.

6. It was necessary for the plaintiff to have works conducted at the Property with a view to preparing it for sale. The plaintiff instructed that any contractor should be accompanied by a security guard when attending the Property because of its apprehension of violence on the part of the defendants.

7. Accordingly when a pool contractor attended the Property on 16 November 2015 he was accompanied by Mr Peter Walker of CTM Protective Services. On that occasion, Mr Walker noticed that he was unable to unlock the entrance gates as the keys which had been provided to him by the plaintiff did not fit the locks. The locks appeared to have been changed on each of the entrance gates since the time of the eviction. A folder of documents was placed at the entrance gate. Assertions were made in various of the documents that the defendants had a continued right to possession of the Property. Some of the documents appeared to be authentic, although they were at odds with the established facts. I infer that their appearance was designed to give verisimilitude to the defendants’ claim for possession. Mr Walker also noticed the presence of animals on the Property and inferred that the animals, which had been relocated from the Property at the time of the eviction, had been returned to the Property by the defendants.

Consideration

The plaintiff’s notice of motion

8. The matter first came before me in the Duty List on 2 December 2015, at which point I abridged the time for service of the plaintiff's notice of motion for a writ of restitution, together with affidavits in support of Richard Lewin, who appears on behalf of the plaintiff. The matter was made returnable before me this afternoon at 2pm.

9. In the interim, the defendant has provided an affidavit affirmed on 3 December 2015. It appears from that affidavit that the defendant, Daniel Maksacheff, has been properly served. He is the partner of the second defendant. In his recent affidavit, Mr Maksacheff sets out various assertions in which he denies the plaintiff's claim to the property and objects to the plaintiff’s application being heard today.

10. In the course of the hearing on 4 December 2015 the court officer, at my request, rang the mobile number provided for Mr Maksacheff, since he had apparently made some request that that occur. However, there was no answer at the time of the call, which was made very close to the time at which the matter was listed before me today. In all the circumstances, I am not disposed to defer determination of the notice of motion until Mr Maksacheff makes himself available to the court.

The defendants’ conduct since the writ of possession was executed

11. In my view the only reasonable available inference is that the defendants have re-entered the Property to take up residence there and have taken steps to subvert the writ of possession and the plaintiff's access and proprietary rights with respect to the Property.

12. In all the circumstances, I am satisfied that the appropriate remedy is to issue a writ of restitution to restore the plaintiff's possession of the land on the Property.

Conclusion

13. As I see it, the defendants have taken action, which was either designed to, or, in any event, had the effect of thwarting the writ of possession which was issued by the court in respect of the Property. In these circumstances, it is appropriate that a writ of restitution issue.

Orders

14. Accordingly, I make the following orders:

1. Leave for the issue of a writ of restitution.

2. The issue of a writ of restitution to restore to the plaintiff possession of the land comprised in folio identifier 2/1135174 being the land situated at and known as 59 Lawson Road, Panuara New South Wales.

3. An order pursuant to rule 40.7 of the Uniform Civil Procedure Rules 2005 (NSW) that a sealed copy of the Court's judgment in these proceedings of 14 July 2015 be issued with the following endorsement:

"Daniel James Maksacheff and Agnieszka Iwona Maksacheff, 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 contained in folio identifier 2/1135174 being the whole of the land situated and known 59 Lawson Road, Panuara New South Wales (Property) to the plaintiff, or if you remain upon that Property, or if you re-enter that Property after possession has been delivered to the plaintiff." (the Amended Judgment)

4. An order pursuant to rule 40.7 of the Uniform Civil Procedure Rules 2005 (NSW) that personal service of the Amended Judgment on the first defendant be dispensed with and in lieu of personal service, service be effected by:

1. affixing a sealed copy of the Amended Judgment to the Property; and

2. sending a sealed copy of the Amended Judgment to the first defendant via email to [address provided]

5. An order pursuant to rule 40.7 of the Uniform Civil Procedure Rules 2005 (NSW) that personal service of the Amended Judgment on the second defendant be dispensed with and in lieu of personal service, service be effected by:

1. affixing a sealed copy of the Amended Judgment to the Property; and

2. sending a sealed copy of the Amended Judgment to the second defendant via email to [address provided]

**********

Decision last updated: 09 December 2015