St George Bank v Udowenko and Ors [2010] NSWSC 1289

St George Bank v Udowenko and Ors [2010] NSWSC 1289

The March 2004 possession judgment remained effective and unappealed, the plaintiff had been put in possession under it, and the defendants and Volodymyr Udovenko re-occupied the property without demonstrating any right to possession or occupation. The defendants' asserted jury-trial entitlement and jurisdictional objections were not an available means of challenging the existing judgments or resisting the enforcement relief, and no application satisfying s 85 of the Supreme Court Act 1970 had been made. Justice therefore required leave to issue the writ of restitution and issue of an endorsed sealed copy of the judgment directed to the defendants, but not to Volodymyr Udovenko because he...

Jurisdiction
Australia
Judgment Date
11 November 2010
Procedural Posture
Civil Proceedings Concerning Enforcement of a Judgment for Possession of Mortgaged Land / Post Judgment Motions for Leave to Issue a Writ of Restitution and for Issue of an Endorsed Sealed Copy of Judgment
Outcome
Plaintiff granted leave to issue a writ of restitution and granted an endorsed sealed copy of the judgment directed to the defendants.
Legal Topics
['writ of Restitution' 'writ of Possession' 'reoccupation After Eviction' 'trial by Jury' 'endorsed Sealed Copy of Judgment' 'committal or Sequestration Warning' 'overriding Purpose' 'costs Follow the Event']
['civil Procedure' 'enforcement of Judgments and Orders' 'real Property' 'mortgage Possession'] ['writ of Restitution' 'writ of Possession' 'reoccupation After Eviction' 'trial by Jury' 'endorsed Sealed Copy of Judgment' 'committal or Sequestration Warning' 'overriding Purpose' 'costs Follow the Event']

Case Brief

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Procedural Posture

Civil Proceedings Concerning Enforcement of a Judgment for Possession of Mortgaged Land / Post Judgment Motions for Leave to Issue a Writ of Restitution and for Issue of an Endorsed Sealed Copy of Judgment

Legal Issues

  1. 1 ['Whether the plaintiff should be given leave to issue a writ of restitution to restore possession of the property after the defendants re-occupied it following eviction under a writ of possession.' "Whether the defendants' asserted entitlement to a trial by jury or jurisdictional objections prevented the grant of the plaintiff's enforcement relief." 'Whether a sealed copy of the 15 March 2004 judgment should issue with an endorsement warning the defendants of possible imprisonment or sequestration if they fail to give possession, remain on, or re-enter the property.' 'Whether the endorsement should refer to Volodymyr Udovenko, who was not a party to the proceedings.']

Ratio Decidendi

The March 2004 possession judgment remained effective and unappealed, the plaintiff had been put in possession under it, and the defendants and Volodymyr Udovenko re-occupied the property without demonstrating any right to possession or occupation. The defendants' asserted jury-trial entitlement and jurisdictional objections were not an available means of challenging the existing judgments or resisting the enforcement relief, and no application satisfying s 85 of the Supreme Court Act 1970 had been made. Justice therefore required leave to issue the writ of restitution and issue of an endorsed sealed copy of the judgment directed to the defendants, but not to Volodymyr Udovenko because he...

Court Disposition

Plaintiff granted leave to issue a writ of restitution and granted an endorsed sealed copy of the judgment directed to the defendants.

Orders

  • ['The plaintiff is given leave to issue a writ of restitution to restore to the plaintiff possession of land comprised in certificate of title folio identifier 3/37244 situated and known as 956 Gresford Road, Vacy New South Wales, 2421.' 'A sealed copy of the Court\'s judgment in these proceedings of 15 March 2004...