St George Bank v Udowenko - [2010] NSWSC 1289

CITATION: St George Bank v Udowenko and Ors [2010] NSWSC 1289

HEARING DATE(S): 25 October 2010

JUDGMENT DATE :
11 November 2010

JUDGMENT OF: Schmidt J

DECISION: 1. The plaintiff is given leave to issue a writ of restitution to restore to the plaintiff possession of land comprised in certificate of title folio identifier 3/37244 situated and known as 956 Gresford Road, Vacy New South Wales, 2421.
2. A sealed copy of the Court’s judgment in these proceedings of 15 March 2004 be issued with the following endorsement:
"To Michael Udowenko, Helen Udowenko and Valentyn Udowenko, 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 Certificate of Title Folio Identifier 3/37244 known as 956 Gresford Road, Vacy New South Wales 2421, 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."

CATCHWORDS: PROCEDURE - judgments and orders - enforcement of judgments and orders - possession - order seeking leave to issue writ of restitution - order seeking a sealed copy of judgment with an endorsement - Rules 36.12 and 40.7 of the Uniform Civil Procedure Rules 2005 - reoccupation of property after eviction - claim made for a trial by jury - plaintiff entitled to possession - writ of restitution granted - orders made for the endorsement of judgment - costs

LEGISLATION CITED: Civil Procedure Act 2005
Common Law Procedure Act 1899
Interpretation Act 1987
Supreme Court Act 1970
Supreme Court Procedure Act 1900
Uniform Civil Procedure Rules 2005

CATEGORY: Principal judgment

CASES CITED: Attorney General of NSW v Wilson [2010] NSWSC 1008
Perpetual Ltd v Kelso and Anor [2008] NSWSC 906

PARTIES: Plaintiff - St George Bank Limited
First Defendant - Michael Udowenko
Second Defendant - Helen Udowenko
Third Defendant - Valentyn Udowenko

FILE NUMBER(S): SC 2003/89248

COUNSEL: COUNSEL:
Plaintiff - Mr P Newton

SOLICITORS: SOLICITORS:
Plaintiff - Kemp Strang
Defendants - Volodymyr Udovenko, unrepresented

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IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

SCHMIDT J

THURSDAY, 11 NOVEMBER 2010

2003/89248 ST GEORGE BANK LIMITED v UDOWENKO AND ORS

JUDGMENT

1 HER HONOUR: These proceedings were commenced by the plaintiff in 2003. Orders were sought in respect of land situated at Vacy in New South Wales, the subject of a mortgage. A default judgment for possession was given in favour of the plaintiff in March 2004 and a writ of possession was then issued.

2 Before the Court now are two motions. The motions were supported by various affidavits sworn by officers employed by the plaintiff. The first motion was filed in January 2010, in which leave to issue a writ of restitution was sought, in order to restore to the plaintiff possession of the land. The second motion filed in June 2000 sought orders that a sealed copy of the judgment of 15 March 2004 be issued, with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading St George Bank v Udowenko

Details

AGLC: St George Bank v Udowenko [2010] NSWSC 1289
Case: [2010] NSWSC 1289
Decision Date: 11 November 2010

CaseChat Overview and Summary

The parties in this matter were St George Bank, acting as the registered mortgagee, and Ms Udowenko, the defendant, who had been evicted from a property under a mortgagee sale. The dispute involved a claim for possession of the property and the enforcement of a judgment. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the plaintiff was entitled to a writ of restitution and a sealed copy of the judgment with an endorsement, following an eviction. The court was required to determine if the defendant's claim for a trial by jury was valid and whether the orders sought by the plaintiff were appropriate. The court also had to consider the rules under the Uniform Civil Procedure Rules 2005, specifically Rules 36.12 and 40.7, in relation to the enforcement of judgments and orders.

The court found that the plaintiff was entitled to possession of the property, and the writ of restitution was granted accordingly. The court determined that the defendant's claim for a trial by jury was not valid in this context. The plaintiff's request for a sealed copy of the judgment with an endorsement was also granted. The court ruled that the orders sought by the plaintiff were appropriate and in accordance with the relevant procedural rules. Costs were awarded to the plaintiff.

In conclusion, the court issued a writ of restitution in favour of St George Bank, ordering the reoccupation of the property. The court also made orders for the endorsement of the judgment as requested by the plaintiff. The defendant's claim for a trial by jury was dismissed, and costs were awarded to the plaintiff.

Orders