Maher v Commonwealth Bank of Australia (No 2) [2004] FCA 1398

Maher v Commonwealth Bank of Australia (No 2) [2004] FCA 1398

A warrant of possession cannot issue against a stranger (Taylor) who retook possession after a judgment for possession had been executed; the appropriate recourse for the Commonwealth Bank is to pursue a separate action or, where applicable, contempt proceedings.

Jurisdiction
Australia
Judgment Date
29 October 2004
Procedural Posture
Application and Cross Application / Motion for Warrant of Restoration—final Judgment on Motion
Outcome
Application for warrant of restoration refused. No order as to costs.
Legal Topics
['judgment for Possession' 'warrants of Possession' 'enforcement of Judgments' 'contempt of Court' 'mortgages']
['property Law' 'practice and Procedure'] ['judgment for Possession' 'warrants of Possession' 'enforcement of Judgments' 'contempt of Court' 'mortgages']

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Procedural Posture

Application and Cross Application / Motion for Warrant of Restoration—final Judgment on Motion

Legal Issues

  1. 1 ['Whether the Commonwealth Bank is entitled to a warrant of restoration after a third party (Taylor) retook possession following execution of a judgment for possession.']

Ratio Decidendi

A warrant of possession cannot issue against a stranger (Taylor) who retook possession after a judgment for possession had been executed; the appropriate recourse for the Commonwealth Bank is to pursue a separate action or, where applicable, contempt proceedings.

Court Disposition

Application for warrant of restoration refused. No order as to costs.

Orders

  • ['The motion filed by The Commonwealth Bank of Australia on 30 August 2004 be dismissed.' 'There be no order as to costs.']