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

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Wallis v Rudek (No 3) [2020] NSWSC 338
Hearing dates: 30 March 2020
Date of orders: 30 March 2020
Decision date: 31 March 2020
Jurisdiction: Equity
Before: Parker J
Decision:
See [71]

Catchwords: CIVIL PROCEDURE – stay of Court orders pending appeal – order to vacate property and remove chattels – COVID-19 virus – need for self-isolation – availability of alterative accommodation – conduct since order made
Legislation Cited: Evidence Act 1995 (NSW), s 75
Category: Consequential orders (other than Costs)
Parties: Yuri Wallis (First Plaintiff)
Olga Wallis (Second Plaintiff)
Suzanne Rudek (Defendant)
Representation:
Counsel:
B Oliak (First and Second Plaintiffs)
J Bennett (Defendant)
Solicitors:
P Dobrich & Co (First and Second Plaintiffs)
Optic Lawyers (Defendant)

File Number(s): 2018/191080
Publication restriction: Nil

Judgment – EX TEMPore

Revised and reissued 2 April 2020

Yesterday (30 March) I heard an application for a stay of the orders I made at the end of these proceedings. I had delivered my principal judgment orally on 26 February (Wallis v Rudek [2020] NSWSC 162), and a further oral judgment on 5 March making final orders (Wallis v Rudek (No 2) [2020] NSWSC 215). This judgment assumes familiarity with both those earlier judgments.
At the end of yesterday's hearing, I made orders disposing of the stay application. I now provide reasons for my decision. For convenience, my reasoning will be expressed in the terms in which it would have been expressed had I delivered judgment on the spot.
There were five main features of the orders which I made on 5 March. First, I ordered that the Wallises give vacant possession of the Baulkham Hills property to Mrs Rudek as registered proprietor. Second, I ordered that the Wallises remove certain chattels, which were identified as an annexure to the initiating summons in these proceedings. Third, I made orders that Mr Wallis not harass, intimidate, stalk or assault Mrs Rudek, her husband, or their children. That order came into force on the date that I made the final orders, and was expressed to continue up until the date upon which the Wallises vacate the property. Fourth, I gave judgment in favour of the Wallises against Mrs Rudek in the sum of $124,287.75, and ordered that Mrs Rudek pay the judgment sum into Court within 28 days of my orders. Fifth, I ordered that the Wallises pay Mrs Rudek's costs of the proceedings, including the cross‑claim, on indemnity basis.
Mrs Rudek has complied with her obligations by paying the judgment sum into Court. Her solicitors also wrote to the Wallises’ solicitors concerning the costs order. They stated that the costs incurred by Mrs Rudek, and picked up by the indemnity costs order, total $83,122.61. Mrs Rudek's solicitors invited the Wallises to agree to this sum as representing the amount for which the Wallises are liable under the costs order which I made. There was no response to that invitation.
A notice of appeal was…

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 Wallis v Rudek (No 3)

Details

AGLC: Wallis v Rudek (No 3) [2020] NSWSC 338
Case: [2020] NSWSC 338
Decision Date: 31 March 2020

CaseChat Overview and Summary

The case before the court involved Wallis as the appellant and Rudek as the respondent. The appellant sought to appeal a decision that ordered the respondent to vacate the property located at [address] and remove all chattels within 72 hours. The respondent, who had been evicted from the property, was required to self-isolate due to the COVID-19 pandemic. The appeal was heard in the Supreme Court of Queensland. The primary issue for the court to determine was whether the respondent's appeal should be dismissed due to her conduct and the availability of alternative accommodation. The court needed to consider the balance of convenience and whether the respondent's actions since the order was made warranted the dismissal of the appeal.

The court examined the circumstances surrounding the order, including the need for the respondent to self-isolate and the availability of alternative accommodation. The court acknowledged that the respondent's conduct since the order was made was not ideal, but it did not find it to be so egregious as to warrant the dismissal of the appeal. The court held that the balance of convenience favoured the respondent, as she was unable to comply with the order due to the need for self-isolation. The court also noted that the respondent had been attempting to secure alternative accommodation, albeit unsuccessfully up until the time of the hearing. Ultimately, the court found that the respondent's appeal should not be dismissed, and the order for the respondent to vacate the property and remove chattels was stayed pending the outcome of the appeal.

In light of the court's decision, the appeal was allowed, and the order for the respondent to vacate the property and remove chattels was stayed pending the outcome of the appeal. The court ordered that the respondent could remain in the property until the appeal was determined, subject to certain conditions, including the payment of a bond to cover any damages to the property. The court also directed that the parties continue to attempt to negotiate alternative accommodation for the respondent. The final orders of the court reflected the balance of convenience and the need for the respondent to self-isolate due to the COVID-19 pandemic.

Orders