Commonwealth Bank of Australia v Maksacheff [2015] NSWSC 1860

Supreme Court New South Wales

Medium Neutral Citation: Commonwealth Bank of Australia v Maksacheff [2015] NSWSC 1860 Hearing dates: 4 December 2015 Decision date: 04 December 2015 Jurisdiction: Common Law Before: Adamson J Decision: See paragraph 14 Catchwords: REAL PROPERTY – application for writ of restitution – steps taken by defendant to subvert writ of possession – leave granted for the issue of writ of restitution to restore the plaintiff's possession of the land Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 40.7 Category: Principal judgment Parties: Commonwealth Bank of Australia (Plaintiff) Daniel James Maksacheff (First Defendant) Agnieszka Iwona Maksacheff (Second Defendant) Representation: Counsel: R Lewin (Solicitor) (Plaintiff)

Solicitors: Gadens Lawyers (Plaintiff) File Number(s): 2015/158687

Judgment (EX TEMPORE – REVISED)

Introduction 1. The plaintiff applies for a writ of restitution in respect of certain land known as 59 Lawson Road, Panuara in the State of New South Wales.

The background 1. The first and second defendants are registered proprietors of the Property. On 14 July 2015 judgment for possession was entered in favour of the plaintiff against the first and second defendants in respect of the Property. The plaintiff's rights depend on a mortgage granted by the defendants to secure a debt which remains due and payable. 2. On 27 July 2015 a writ of possession was issued in respect of the Property. On 11 August 2015 the Sheriff of New South Wales issued a Notice to Vacate and scheduled an eviction for 9 October 2015. 3. Ultimately, the eviction did not proceed on that day because of the Sheriff's apprehension that there may be violence and that the police should accompany the Sheriff when enforcing the writ of possession. 4. The eviction was rescheduled for 30 October 2015, on which day the Sheriff executed the writ of possession and placed the plaintiff into possession of the Property. At the time of the eviction, the plaintiff made arrangements for a locksmith to change the locks at the Property. 5. It was necessary for the plaintiff to have works conducted at the Property with a view to preparing it for sale. The plaintiff instructed that any contractor should be accompanied by a security guard when attending the Property because of its apprehension of violence on the part of the defendants. 6. Accordingly when a pool contractor attended the Property on 16 November 2015 he was accompanied by Mr Peter Walker of CTM Protective Services. On that occasion, Mr Walker noticed that he was unable to unlock the entrance gates as the keys which had been provided to him by the plaintiff did not fit the locks. The locks appeared to have been changed on each of the entrance gates since the time of the eviction. A folder of documents was placed at the entrance gate. Assertions were made in various of the documents that the defendants had a continued right to possession of the Property. Some of the documents appeared to be authentic, although they were at odds with the established facts. I infer that their appearance was designed to give verisimilitude to the defendants' claim for possession. Mr Walker also noticed the presence of animals on the Property and inferred that the animals, which had been relocated from the Property at the time of the eviction, had been returned to the Property by the defendants.