Commonwealth Bank of Australia v Makascheff [2017] NSWSC 22

Commonwealth Bank of Australia v Makascheff [2017] NSWSC 22

The stay was refused because Mr and Mrs Maksacheff had not shown a fairly arguable case on appeal or judicial review, damages would be an adequate remedy if their asserted rights were later made good, no undertaking as to damages or payment into court was offered, the bank had contracted to give vacant possession to third party purchasers, and the defendants' continued possession breached existing court orders, the possession judgment, Schmidt J's injunction and the issued writ.

Jurisdiction
Australia
Judgment Date
12 January 2017
Procedural Posture
Notice of Motion in Possession List Proceedings / Urgent Application to Stay Execution of a Second Writ of Restitution
Outcome
The Notice of Motion filed at 12.08am on 12 January 2017 is dismissed.
Legal Topics
['stay of Execution' 'writ of Restitution' 'possession Proceedings' 'default Judgment' 'judicial Review' 'leave to Appeal' 'torrens Title' 'mortgage Enforcement']
['real Property' 'civil Procedure'] ['stay of Execution' 'writ of Restitution' 'possession Proceedings' 'default Judgment' 'judicial Review' 'leave to Appeal' 'torrens Title' 'mortgage Enforcement']

Case Brief

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Procedural Posture

Notice of Motion in Possession List Proceedings / Urgent Application to Stay Execution of a Second Writ of Restitution

Legal Issues

  1. 1 ["Whether execution of the second Writ of Restitution should be stayed pending the defendants' judicial review application and notice of intention to appeal." 'Whether the defendants showed a fairly arguable case on appeal or review.' 'Whether the balance of convenience favoured a stay of execution.' 'Whether damages would be an adequate remedy if the asserted appeal rights were later made good.' "Whether the defendants' continued possession in breach of court orders and the rights of third party purchasers weighed against relief."]

Ratio Decidendi

The stay was refused because Mr and Mrs Maksacheff had not shown a fairly arguable case on appeal or judicial review, damages would be an adequate remedy if their asserted rights were later made good, no undertaking as to damages or payment into court was offered, the bank had contracted to give vacant possession to third party purchasers, and the defendants' continued possession breached existing court orders, the possession judgment, Schmidt J's injunction and the issued writ.

Court Disposition

The Notice of Motion filed at 12.08am on 12 January 2017 is dismissed.

Orders

  • ['The relief sought in the Notice of Motion is refused.' 'The Notice of Motion filed at 12.08am on 12 January 2017 is dismissed.']