Maksacheff v Commonwealth Bank of Australia

[2017] NSWCA 76

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Maksacheff v Commonwealth Bank of Australia [2017] NSWCA 76
Hearing dates:	27 March 2017
Decision date:	27 March 2017
Before:	Sackville AJA
Decision:	1.   The applicant’s motion filed on 14 March 2017 is dismissed. 2.   The applicant pay the respondent’s costs of the motion.
Catchwords:	REAL PROPERTY – notice of motion – application to stay enforcement orders until matter heard – motion dismissed
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 64
Category:	Principal judgment
Parties:	Daniel Maksacheff (Applicant) Commonwealth Bank of Australia (Respondent)
Representation:	Counsel: In person (Applicant) Mr J Hynes (Respondent)   Solicitors: Dentons Australia (Respondent)
File Number(s):	2017/75063
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2017] NSWSC 22 [2016] NSWSC 1586 [2015] NSWSC 1860 Date of Decision: 12 January 2017 10 November 2016 4 December 2015 Before: Campbell JSchmidt JAdamson J File Number(s): 2016/115260 2015/158687 2015/158687

Judgment – EX TEMPORE

1. SACKVILLE AJA: On 6 February 2017 I made a number of orders in this matter. The orders were as follows:

“1.    Direct the respondent to file and serve a notice of motion seeking to dismiss the Amended Summons filed on 25 November 2016, within 14 days.

2.    Direct the respondent to file and serve written submissions in support of any such notice of motion within 14 days.

3.    Direct the applicants/plaintiffs to file and serve written submissions in response to the respondent’s submissions within a further 14 days.

4.    Grant leave to the applicant to file in court the summons seeking leave to appeal, initialled and dated by me, on the undertaking of the applicant to pay within 14 days to the Registrar any fees payable in respect of the filing of such a summons.

5.    Grant leave to the applicant to file in court the draft notice of appeal, initialled and dated by me.

6.    Direct the respondent to file and serve any notice of motion in relation to the summons seeking leave to appeal and the draft notice of appeal within 14 days.

7.    Direct the respondent to file and serve any written submissions in support of any such notice of motion within 14 days.

8.    Direct the applicant to file and serve any written submissions in response to the submissions referred to in Order 7 within a further 14 days.

9.    Grant leave to the applicant to file and serve any notice of motion seeking a stay of orders within 14 days.

10.    The matter to be relisted before the Registrar on Monday, 13 March 2017 9.00 am.”

2. The reference in Order 1 of the orders that I made on 6 February 2017 is to a summons filed by the present applicant, Mr Maksacheff, seeking, among other things, judicial review of three separate decisions of Judges of the Common Law Division. It seems that the summons is intended to be filed on behalf of both Mr and Mrs Maksacheff.

3. The reference in Order 5 of the orders is to a draft Notice of Appeal prepared by the applicant. The draft Notice of Appeal does not identify the decisions from which the proposed appeal is to be brought. However, the intention is presumably to challenge the three decisions that are referred to, although incompletely, in the Summons seeking judicial review.

4. On 21 February 2017, the respondent, the Commonwealth Bank of Australia (CBA), filed and served its submissions in support of its Notice of Motion seeking to dismiss the applicant’s summons seeking judicial review of the three decisions of Judges of the Common Law Division.

5. On 6 March 2017, the applicant filed written submissions in answer to CBA’s submissions filed on 21 February 2017.

6. On 10 March 2017, the applicant filed a summons seeking leave to appeal “from the whole of the decision[s] below”. The summons again does not identify the decisions that are intended to be challenged.

7. On 14 March 2017, Mr Maksacheff filed a Notice of Motion seeking the following orders:

“1.   That the Court grants a stay of all enforcement actions until this matter is heard in a court of competent jurisdiction. Civil Procedure Act 2005 Sect 64 - stay of proceedings.

2.   That the land be restored to the owners until this matter is resolved.

3.   That the Bank restore all property to the land as it was prior to 13 January 2017 including all furniture and shipping containers.

4.   The Bank cover all moving costs.”

8. On 20 March 2017, CBA filed written submissions in opposition to the application for leave to appeal from the three decisions.

9. On 21 March 2017, the applicant filed a response to CBA’s submissions. The response simply repeats the written submissions filed on 6 March 2017.

10. CBA’s motion and the applicant’s summons seeking leave to appeal are set down for hearing on 12 April 2017.

11. It is not necessary to summarise the protracted history of these proceedings. CBA’s submissions of 20 March 2017 contain a summary of the procedural steps that have occurred in this case, including the judgments that have been delivered. There is evidence to support that history. The history includes the fact that on 13 January 2017 the New South Wales Sheriff executed the writ of restitution that was granted by Schmidt J in November 2016 in relation to the property of which the applicant is a registered proprietor.

12. It is enough for present purposes to observe that CBA has taken possession of the property. It has successfully resisted previous attempts by the applicant to restrain a sale of the property and the exercise by CBA of its powers as mortgagee in possession.

13. CBA has obtained two separate orders for restitution against the applicant by reason of his having unlawfully retaken possession of the property. CBA has also obtained orders restraining the applicant from re-entering the property. Those orders remain in force.

14. The evidence establishes that CBA has entered into a contract to sell the property to a third party. Completion of the sale of the property is scheduled to take place in the near future. However, completion has been delayed because of the need to remove items apparently brought onto the property by the applicant. The third party has not been joined to these proceedings.

15. The material filed by the applicant, quite apart from formal deficiencies, such as the failure to identify the decisions challenged, contains nothing that would provide a basis for granting a stay or similar orders in his favour. There is also nothing that would justify an order being made at this stage reinstating the applicant to possession of the property. Apart from anything else, restraining orders are in place and no application has been made to set them aside.

16. The applicant has failed in his previous attempts to delay execution of the judgment in favour of CBA and has had orders made against him for attempting to take the law into his own hands. The applicant will have an opportunity to put his case when the matter comes before the Court on 12 April 2017. In the meantime there is no basis for ordering a stay or any of the other orders that are sought by the applicant in the motion of 14 March 2017. Accordingly, the applicant’s motion of 14 March 2017 is dismissed.

17. The applicant must pay CBA’s costs of the motion.

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Decision last updated: 07 April 2017