Wallis v Rudek

[2020] NSWCA 61

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Wallis v Rudek [2020] NSWCA 61
Hearing dates:	6 April 2020
Decision date:	06 April 2020
Before:	White JA
Decision:	Direct the appellants’ counsel to bring in short minutes of order in accordance with these reasons.
Catchwords:	JUDGMENTS AND ORDERS — Court of Appeal – whether order requiring vacant possession be stayed pending the resolution of appeal proceedings – COVID-19 pandemic – no issue of principle
Cases Cited:	Fox v Percy (2003) 214 CLR 118 Wallis v Rudek (No 3) [2020] NSWSC 338 Wallis v Rudek [2020] NSWSC 162 Yeshiva Synagogue Inc v Karimbla Properties (No 10) Pty Ltd [2017] NSWCA 331
Category:	Procedural and other rulings
Parties:	Yuri Wallis (First Applicant) Olga Wallis (Second Applicant) Suzanne Rudek (Respondent
Representation:	Counsel: B Oliak (Applicants) J Bennett (Respondent)   Solicitors: P Dobrich & Co Solicitors (Applicants) Optic Lawyers (Respondent)
File Number(s):	2020/95805
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2020] NSWSC 162 Date of Decision: 26 February 2020 Before: Parker J File Number(s): 2018/191080

Judgment

1. HIS HONOUR: By notice of motion filed on 2 April 2020 the appellants seek a stay of orders 4, 6, 7 and 10 made by Parker J on 5 March 2020. Order 4 made on 5 March 2020 was that:

“The plaintiffs to provide vacant possession of the Ground Floor Unit within 28 days from the date of these orders, subject to any further order of the Court.”

2. Orders 6 and 7 provided a regime for the removal of chattels which are presently located on the upper floors of the property to be collected by the plaintiffs. The orders provided for the plaintiffs or their solicitors to give notice of an appropriate time for the chattels to be collected and orders were made for the plaintiffs to remove the chattels within 28 days. There is no occasion to stay orders 6 and 7. There is no dispute about those orders. The appellants have filed a notice of appeal on 1 April 2020. They do not seek the discharge of those orders.

3. Order 10 was an order that the plaintiffs (that is, the appellants) pay the defendants’ (that is, the respondents’) costs of the proceedings on an indemnity basis. No adequate reason is advanced for such a stay. There is no reason that in the absence of agreement those costs should not be assessed.

4. The real issue concerns order 4 requiring the appellants to provide vacant possession of their Ground Floor Unit. The appellants are aged 75 and 80 and have health issues (to which I will return later). They are concerned, understandably, about the effect of the COVID-19 pandemic and the advice given to persons in their situation to stay at home and self-isolate so far as possible.

5. The primary judge gave his principal judgment on 26 February 2020 (Wallis v Rudek [2020] NSWSC 162). The respondent defendant in the court below is the appellants’…