Commonwealth Bank of Australia v Makascheff [2017] NSWSC 22

Supreme Court New South Wales

Medium Neutral Citation: Commonwealth Bank of Australia v Makascheff [2017] NSWSC 22 Hearing dates: 12 January 2017 Date of orders: 12 January 2017 Decision date: 12 January 2017 Jurisdiction: Common Law Before: Campbell J Decision: The Notice of Motion filed at 12.08am on 12 January 2017 is dismissed. Catchwords: REAL PROPERTY – notice of motion – urgent application to stay execution of writ for possession – where applicant in adverse possession of property – motion dismissed – no question of principle Legislation Cited: Commonwealth Constitution, s 75 Judiciary Act 1903 Uniform Civil Procedure Rules 2005, r 36.12 Cases Cited: Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161; [1971] HCA 64 Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1 Category: Procedural and other rulings Parties: Commonwealth Bank of Australia (Plaintiff) Daniel James Maksacheff and Agnieszka Iwona Maksacheff (Defendants) Representation: Counsel: Mr Lewin (Solicitor) (Plaintiff) D.J. Maksacheff (self-represented) (via telephone link up) (Defendants)

Solicitors: Gadens Lawyers (Plaintiff) File Number(s): 2016/00115260

EX TEMPORE JUDGMENT - Revised 1. I am called upon to decide an application for a stay of execution of a second Writ of Restitution issued in these proceedings in the Possession List. The Notice of Motion and affidavit in support were filed online overnight at 12.08am. The matter has come before me urgently because the appointment for the Sheriff to execute the writ is tomorrow at about 8:30am. The applicants for the stay, Mr and Mrs Maksacheff, have appeared by telephone with Mr Maksacheff acting as advocate and he assures me that he has the authority of his wife to speak for them both. The bank is represented by Mr Lewin, solicitor, and he has relied upon his affidavits of 25 October 2016 and 12 January 2017. It is necessary to set out briefly some of the history of this litigation.