Commonwealth Bank of Australia v Maksacheff [2015] NSWSC 1860

Commonwealth Bank of Australia v Maksacheff [2015] NSWSC 1860

The only reasonable available inference was that the defendants had re-entered the Property, taken up residence there, and taken steps to subvert the writ of possession and the plaintiff's access and proprietary rights; therefore a writ of restitution should issue to restore the plaintiff's possession.

Jurisdiction
Australia
Judgment Date
04 December 2015
Procedural Posture
Real Property Application for Writ of Restitution / Notice of Motion for Writ of Restitution After Execution of Writ of Possession
Outcome
Leave granted for the issue of a writ of restitution and writ of restitution ordered.
Legal Topics
['writ of Possession' 'writ of Restitution' 'mortgage Possession' 'service of Judgment Under Uniform Civil Procedure Rules 2005 (nsw), R 40.7']
['real Property' 'civil Procedure'] ['writ of Possession' 'writ of Restitution' 'mortgage Possession' 'service of Judgment Under Uniform Civil Procedure Rules 2005 (nsw), R 40.7']

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Procedural Posture

Real Property Application for Writ of Restitution / Notice of Motion for Writ of Restitution After Execution of Writ of Possession

Legal Issues

  1. 1 ["Whether leave should be granted for the issue of a writ of restitution to restore the plaintiff's possession of the land." "Whether the defendants had re-entered the Property and taken steps to subvert the writ of possession and the plaintiff's access and proprietary rights." 'Whether determination of the notice of motion should be deferred after the first defendant objected to the application being heard.']

Ratio Decidendi

The only reasonable available inference was that the defendants had re-entered the Property, taken up residence there, and taken steps to subvert the writ of possession and the plaintiff's access and proprietary rights; therefore a writ of restitution should issue to restore the plaintiff's possession.

Court Disposition

Leave granted for the issue of a writ of restitution and writ of restitution ordered.

Orders

  • ['Leave for the issue of a writ of restitution.' 'The issue of a writ of restitution to restore to the plaintiff possession of the land comprised in folio identifier 2/1135174 being the land situated at and known as 59 Lawson Road, Panuara New South Wales.' "An order pursuant to rule 40.7 of the Uniform Civil...