Wallis v Rudek (No. 2)

[2020] NSWCA 175

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Wallis v Rudek (No. 2) [2020] NSWCA 175

Hearing dates:

3 and 11 August 2020

Decision date:

11 August 2020

Before:

White JA

Decision:

Direct counsel to bring in short minutes of order consistent with the reasons.

Catchwords:

JUDGMENTS AND ORDERS – Court of Appeal – Whether order staying the giving up of vacant possession pending the resolution of appeal proceedings should be discharged – Whether undertakings proffered in support of the stay have been breached – Stay discharged

Legislation Cited:

Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020

Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No. 4) 2020

Cases Cited:

Taunton v Taunton [2019] NSWSC 1513

Wallis v Rudek (No. 2) [2020] NSWSC 215

Wallis v Rudek (No. 3) [2020] NSWSC 338

Category:

Procedural and other rulings

Parties:

Yuri Wallis (First Appellant)
Olga Wallis (Second Appellant)
Suzanne Rudek (Respondent)

Representation:

Counsel:
B Oliak (Appellants)
J Bennett (Respondent)

Solicitors:
P Dobrich & Co (Appellants)
Optic Lawyers (Respondent)

File Number(s):

2020/95805

Judgment

1. HIS HONOUR: On 5 March 2020 Parker J made final declarations and orders, including a declaration that the defendant (the present respondent) was entitled to vacant possession of the ground floor unit of the building at the property in Schofield Parade, Pennant Hills (“the Property”) and an order that the plaintiffs (the present appellants) provide vacant possession of the ground floor unit within 28 days, subject to any further order of the Court (Wallis v Rudek (No. 2) [2020] NSWSC 215). His Honour also ordered that:

“the first plaintiff not harass, intimidate, stalk or assault the defendant, her husband Vass Rudek or her children between the date of these orders and the date upon which the plaintiffs vacate the property”.

2. On 30 March 2020 the primary judge dismissed the appellants’ notice of motion seeking a stay of those orders (Wallis v Rudek (No. 3) [2020] NSWSC 338).

3. On 7 April 2020, for reasons given on 6 April 2020, I noted certain undertakings given by the appellants to the Court. I made the following order:

“On the basis of the undertakings order 4 of the orders made by Parker J on 5 March 2020 be stayed pending the determination of the Appeal or until further order of the Court of Appeal.”

4. Order 4 of the orders made by Parker J on 5 March 2020 was the order requiring the plaintiffs to provide vacant possession of the ground floor unit within 28 days.

5. I am now sitting as a single judge of appeal exercising the jurisdiction of the Court of Appeal to determine, amongst other things, an application made by the respondent to discharge that stay.

6. Included amongst the undertakings that I noted and on the basis of which I ordered a stay of the order for possession were undertakings by the appellants that within seven days they would remove, or cause to be removed, their belongings from the pool area and…