Helen Udowenko & Ors v St George Bank Limited

[2011] HCASL 171

HELEN UDOWENKO & ORS
v
ST GEORGE BANK LIMITED & ORS
[2011] HCASL 171
S234/2011

1. In 2004 the first respondent obtained default judgment for possession of land against the applicants.  The applicants obtained a number of stays of the writ of possession.  On 24 October 2008 their application to set aside the default judgment was dismissed.  Neither the 2004 nor the 2008 judgments were appealed against.  The first respondent was put in possession of the land in November 2008.  The applicants then reoccupied the property and refused to leave.  The first respondent obtained from the Supreme Court of New South Wales (Schmidt J) a writ of restitution to restore the first respondent to possession.

2. The Court of Appeal of the Supreme Court of New South Wales (McColl and Young JJA) dismissed the applicants' application for leave to appeal from the judgment of Schmidt J on the ground that the applicants' complaint went to the dispute underlying the litigation in 2004 and 2008, and demonstrated no error in the decision of Schmidt J to issue the writ of restitution. 

3. The applicants have taken the same approach in the papers filed in support of their application for special leave to appeal against the Court of Appeal's orders.  There is no point in granting special leave to appeal unless error is demonstrated on the part of Schmidt J.  This the applicants do not attempt to do.  

4. The application is dismissed.

5. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

J.D. Heydon
26 October 2011 V.M. Bell