Supreme Court New South Wales Medium Neutral Citation: Wallis v Rudek (No 3) [2020] NSWSC 338 Hearing dates: 30 March 2020 Date of orders: 30 March 2020 Decision date: 31 March 2020 Jurisdiction: Equity Before: Parker J Decision: See [71] Catchwords: CIVIL PROCEDURE – stay of Court orders pending appeal – order to vacate property and remove chattels – COVID-19 virus – need for self-isolation – availability of alterative accommodation – conduct since order made Legislation Cited: Evidence Act 1995 (NSW), s 75 Category: Consequential orders (other than Costs) Parties: Yuri Wallis (First Plaintiff) Olga Wallis (Second Plaintiff) Suzanne Rudek (Defendant) Representation: Counsel: B Oliak (First and Second Plaintiffs) J Bennett (Defendant) Solicitors: P Dobrich & Co (First and Second Plaintiffs) Optic Lawyers (Defendant) File Number(s): 2018/191080 Publication restriction: Nil Judgment – EX TEMPore Revised and reissued 2 April 2020 1. Yesterday (30 March) I heard an application for a stay of the orders I made at the end of these proceedings. I had delivered my principal judgment orally on 26 February (Wallis v Rudek [2020] NSWSC 162), and a further oral judgment on 5 March making final orders (Wallis v Rudek (No 2) [2020] NSWSC 215). This judgment assumes familiarity with both those earlier judgments. 2. At the end of yesterday's hearing, I made orders disposing of the stay application. I now provide reasons for my decision. For convenience, my reasoning will be expressed in the terms in which it would have been expressed had I delivered judgment on the spot. 3. There were five main features of the orders which I made on 5 March. First, I ordered that the Wallises give vacant possession of the Baulkham Hills property to Mrs Rudek as registered proprietor. Second, I ordered that the Wallises remove certain chattels, which were identified as an annexure to the initiating summons in these proceedings. Third, I made orders that Mr Wallis not harass, intimidate, stalk or assault Mrs Rudek, her husband, or their children. That order came into force on the date that I made the final orders, and was expressed to continue up until the date upon which the Wallises vacate the property. Fourth, I gave judgment in favour of the Wallises against Mrs Rudek in the sum of $124,287.75, and ordered that Mrs Rudek pay the judgment sum into Court within 28 days of my orders. Fifth, I ordered that the Wallises pay Mrs Rudek's costs of the proceedings, including the cross‑claim, on indemnity basis. 4. Mrs Rudek has complied with her obligations by paying the judgment sum into Court. Her solicitors also wrote to the Wallises' solicitors concerning the costs order. They stated that the costs incurred by Mrs Rudek, and picked up by the indemnity costs order, total $83,122.61. Mrs Rudek's solicitors invited the Wallises to agree to this sum as representing the amount for which the Wallises are liable under the costs order which I made. There was no response to that invitation. 5. A notice of appeal was filed for the Wallises on 27 March. The current application is for a stay pending the hearing and determination of the appeal. Initially the application sought a stay of all orders, but at the hearing, counsel confined it to a stay of the order for vacant possession, the order for removal of the chattels, and the costs order. 6. I should say something about the way in which the stay application came forward. At the hearing on 5 March there was discussion about how long the Wallises should have to give vacant possession and remove the chattels. Counsel for the Wallises sought a period of time longer than 28 days. I was not prepared to agree to this. The Wallises had known since 26 February that they had failed in their claim and would be ordered to give vacant possession of the property and remove their chattels. It seemed to me that it ought to be possible, should the Wallises decide to appeal, for them to obtain the necessary advice, and if so advised, for their notice of appeal to be formulated, well within 28 days of 5 March. 7. The order that I made on 5 March granted liberty to the Wallises to apply for a stay and fixed 30 March as the day on which any such application was to be made. But the orders did not provide for any abridgement of the usual period of time required to file a notice of motion. This was not an accident on my part. I contemplated that if any application was made at all, the Wallises would file their notice of motion and any affidavit in support at least three clear working days before 30 March, in accordance with the Rules. 8. The Wallises' application was not, however, filed in accordance with this timetable. Instead, on Friday 27 March the Wallises' solicitors approached the Duty Registrar with a notice of motion and supporting affidavit. The Deputy Registrar was asked to make orders for abridgement of the time for service so as to allow the application to proceed on the afternoon of 30 March in accordance with the date fixed on 5 March. 9. I directed the Deputy Registrar, in the interests of expediency, to make the necessary order for abridgement of service on the basis that it be open to me at the hearing to revoke that grant. In response, Mrs Rudek's solicitors managed to prepare affidavits over the weekend which were served on Monday, and they served further evidence in the course of the day, before the application came on for hearing at 4pm. 10. When I pointed out the failure to comply with the timetable to counsel, her initial response was to assert that Mrs Rudek was not prejudiced. That submission was maintained even when I pointed out that Mrs Rudek's solicitors had been forced to respond to the application over the weekend. Eventually a grudging apology was offered, but no explanation was given at any stage for why the application had not been filed in the ordinary way as contemplated by the orders of 5 March. The truth is that there was no justification for abridging the time for service, but given the conclusions I have reached on the application I see no need to address this matter any further. 11. As will be seen, the evidence in support of the application was full of evidentiary holes which were pointed out to counsel for the Wallises in the course of the hearing. I became concerned that grounds might exist for a short extension of time, bearing in mind the current state of the COVID‑19 emergency. I was prepared to offer the Wallises a week's extension of time on the order for vacant possession and the removal of the chattels, or at least some of them to allow the Wallises to marshal further evidence in support of their application. 12. Counsel for Mrs Rudek obtained instructions to agree to this, but I was of the view that the Wallises should pay an occupation fee as a condition of the extension. Counsel for Mrs Rudek proposed a fee of $300 and no objection was taken to the reasonableness of that amount. After consulting her clients, however, counsel for the Wallises informed me that they were not prepared to submit to any such condition. Accordingly, the possibility of an adjournment fell away, and I went on to deal with the application on the basis of the evidence put before the Court. 13. The evidence in support of the application consisted of an affidavit of Mr Petar Dobrich, the Wallises' solicitor. He deposed that Mr Wallis is currently 75 years old, and Mrs Wallis is 80. They both live on pension benefits paid by Centrelink. They have been living on the ground floor of the Baulkham Hills house since 1985. 14. According to Mr Dobrich, Mr Wallis had a heart transplant ten years ago, and has not worked since then. He takes aspirin as a blood thinner, and has high cholesterol for which he takes medication. He had leukaemia about four years ago, but this is in remission. 15. Mrs Wallis was diagnosed with a slow growing brain tumour about four years ago which affects the left side of her body, and she suffers pain as a result. The tumour also affects her heart and blood pressure, and she is on blood pressure medication. 16. Mr Dobrich referred to fact sheets and other publicly available information about the COVID‑19 virus. Those sources of information confirm something of which the Court would be prepared to take judicial notice in any event, namely that people who are aged 65 years or older, and especially those with chronic medical conditions, are most at risk from the virus. Mr Dobrich deposed that he had been advised by the Wallises that since the orders were made on 5 March, they have been self‑isolating. Mr Dobrich recorded that he was told that the Wallises have not been leaving the ground floor of the house except infrequently to go to the shops to buy food for themselves. 17. Mr Dobrich also recorded that the Wallises had advised him that they have "no options for alternate accommodation currently available to them". They wish to continue to self‑isolate on the ground floor of the house until the emergency has passed. From the information publicly available, it seems that that could be six months or more. 18. Mr Dobrich also deposed that he had been advised by the Wallises that there had been "no altercations or other disagreements with [Mrs Rudek] and/or her family" since the orders were made on 5 March. He deposed that Mr Wallis "states" that he had complied, and would continue to comply, with the order made by the Court in this regard. 19. As to the Wallises' financial position, Mr Dobrich deposed that he had been advised by them that their only asset was a block of vacant bushland in country Victoria. The land was said to be bushfire affected, and probably worth $170,000, but hard to sell in the current environment. 20. Although, as I have said, there had been no response to Mrs Rudek's solicitor's letter about the costs order, Mr Dobrich's affidavit proceeded on the basis that Mr and Mrs Wallis would be liable for the full $83,122.61. 21. Mr Dobrich also referred to another feature of the orders which I made on 5 March. As I recorded in my principal judgment, the Wallises claimed Centrelink benefits for rental assistance from 2013 onwards, even though, on the face of it, they had no entitlement to any such benefits, not being required by Mrs Rudek to pay rent. As a condition of granting equitable relief to the Wallises in the form of the judgment for $124,287.75, I required an undertaking from them to repay this amount to Centrelink, together with any interest or penalties. I contemplate that this sum will be paid out of the moneys in Court. 22. Mr Dobrich deposed to having been advised by Mrs Wallis that she had visited the Centrelink office and had been told that the rental assistance received had been around $10,000, but that it would take about two months before she received a formal written communication from Centrelink. If this figure is correct, then the amount effectively available to the Wallises from the moneys paid into Court is approximately $114,000. 23. In response to the application, counsel for Mrs Rudek read affidavits from her and from three other members of her family. Affidavits were read from her two sons, Steve Rudek and Kostya Rudek. Both deposed to ongoing anxiety they feel as a result of their grandfather's presence at the house. Steve Rudek deposed to two incidents, one on 7 March and one on 28 March (the Saturday after the application was filed on the Friday), of verbal abuse from his grandfather. He said that his grandfather roams freely around the property on a daily basis. He also gave evidence on occasions of seeing his grandparents attending church. The suggestion was that they are not self‑isolating, or at least not self‑isolating to the maximum extent, as advised to Mr Dobrich. 24. An affidavit was also read from Mrs Rudek's husband, Vass Rudek. He deposed to an incident on 23 March when he was at home cleaning the top of a coffee table. He said that he was interrupted by Mr Wallis, who screamed at him "why are you cleaning my table?". Mr Rudek said that the table belonged to him, not Mr Wallis, but in order to preserve the peace he did not respond and went back inside. He also said in response to the claim that the Wallises are self‑isolating that he had noticed no change in the way they conducted themselves, and in particular Mr Wallis was spending most of his time outside. Mr Rudek said that he feels that as a result of the situation he feels he cannot walk around the property and he is compelled to remain inside. 25. In her affidavit Mrs Rudek also stated the Wallises continued to live as they did before the COVID‑19 emergency. She said that Mr Wallis continues to do hobby work at the property, both in the front and back yard. She said that he is not self‑isolating indoors, and is continually roaming around the property. 26. Mrs Rudek also gave evidence of attending the Local Court at Burwood on 16 March. This was for the hearing of an application for an apprehended violence order made by Mr Wallis against Mr Rudek. Mrs Rudek described the course of the hearing. She said that Mr Wallis was offered an opportunity to withdraw his application but nevertheless pressed on with it. 27. During the hearing there was reference made to these proceedings and my decision. Mr Wallis told the Presiding Magistrate that he was appealing the decision. According to Mrs Rudek, the Magistrate responded by saying "Do you understand Mr Wallis that you can only appeal a decision if the Judge has made an error of law? I strongly urge that you pack your bags". The application was dismissed. 28. Mrs Rudek also deposed to the emotional effect which the dispute and her father's behaviour is having on her. She said that it was causing her and Mr Rudek to quarrel (evidence which Mr Rudek corroborated). She said that she felt that she was a prisoner in her own home, and was constantly having to beg her husband and children to ignore her father, in order to avoid further trouble. 29. There was also evidence before me of information obtained by Mrs Rudek's solicitor, Mr Nathan Buckley, about availability of alternative accommodation. Mr Buckley gave evidence by reference to internet searches showing that there is accommodation in the Hills District available for rental. There was also evidence of the steps that needed to be taken in order to inspect units. The evidence was that inspections are possible although they must be undertaken privately, by appointment, and only one person may inspect at a time. 30. There was no evidence from the Wallises in reply to any of this evidence. 31. Counsel for the Wallises contended that they have a viable appeal against my decision on the grounds set out in the notice of appeal. Counsel argued that the Court needed to grant a stay or else the Wallises' appeal would be rendered nugatory. Counsel submitted that otherwise there would be a clear injustice to the Wallises. 32. The Wallises' principal claim in these proceedings was for relief which would entitle them to stay in the ground floor of the house for the rest of their lives. This claim was based on an alleged oral promise by Mrs Rudek giving rise, so it was argued, to a contract, or alternatively, a proprietory estoppel. I found against these claims. The Wallises' notice of appeal seeks to have the Court of Appeal grant the Wallises the relief they unsuccessfully claimed before me. 33. If the Wallises are forced to move out, it will not prevent them from pursuing their appeal. I recognise that it will impose inconvenience and some cost on them. There was no suggestion that they are unable to pay the costs of moving out and then, if successful, moving back in again; or the cost of paying rent in the meantime. If they succeed in the appeal, they will be entitled to restitution for the amounts they have paid. In my view, it is quite wrong to suggest that this is one of those cases where if a stay is refused, the right of appeal would be rendered nugatory. 34. For present purposes, the critical finding in my judgment was that I was not satisfied that Mrs Rudek had made the alleged promise. This conclusion meant that the Wallises' claim for relief entitling them to remain in the property failed. There were other aspects of my decision, but they are not relevant for present purposes. 35. My finding is referred to in grounds 1 and 2 of the notice of appeal. They state: 1. The trial judge erred (at J[104] and [137(1)]) in finding that the First Appellant and the Second Appellant (collectively, the "Appellants") and the Respondent had not entered into a binding agreement capable of specific performance for the Appellants to stay in the property (being the ground floor unit (the "Ground Floor Unit") of the property known as 2 Schofield Parade, Pennant Hills (the "Property")) for the rest of their lives. 2. The trial judge erred (at J[105] and [137(2)]) in finding that there was no proprietary estoppel on the basis there was no promise by the Respondent that the Appellants were entitled to stay in the Ground Floor Unit for the rest of their lives. 1. These grounds do not reveal the basis for the challenge to my finding that Mrs Rudek did not make the promise alleged. That was a factual finding which was based on hearing the evidence of Mr and Mrs Wallis and Mr and Mrs Rudek. The critical witnesses were Mr Wallis and Mrs Rudek. For reasons which I gave in my judgment, I had reservations about Mr Wallis' credibility, but no such reservations about Mrs Rudek's. I also thought that Mrs Rudek's account was more consistent with the surrounding circumstances as revealed by the evidence. In particular, her account was supported by the correspondence from the conveyancer who acted in the transaction, and which was in evidence before me. 2. None of this reasoning is criticised, or even referred to, in the notice of appeal. The closest the notice of appeal gets is ground 10 which states: 10 The trial judge erred (at J[51] to J[66]) in making credibility findings for the First Appellant, Second Appellant, Respondent and the Respondent's husband that were not supported by the content, scope and/or manner of the evidence given by them. 1. This ground is entirely general in form, and provides no real clue to what argument would be presented on behalf of the Wallises to challenge my finding. I asked counsel for the Wallises what arguments would be presented in support of grounds 1 and 2 of the notice of appeal. Her response was that the same arguments which had been presented to me would be presented again to the Court of Appeal, to which she added that other arguments would be presented. When I asked her what other arguments, she did not say. 2. A trial judge dealing with an application for a stay pending an appeal from his or her decision may sometimes be placed in a somewhat awkward position when evaluating the unsuccessful parties' grounds of appeal. Generally speaking, the Court should not go beyond inquiring whether an appeal is viable. One must also bear in mind the possibility that the appeal court may see the case differently from the way in which the trial judge has seen it. But there is no such embarrassment in the present case. 3. On behalf of the Wallises, grounds of appeal have been asserted, but no basis for them has been articulated. The Wallises may or may not ultimately have viable arguments to the effect that my decision on the critical factual question was wrong, but if so, those arguments have not been put before the Court. All the Court has is a series of assertions of error without any underlying explanation or, apparently, any recognition of the limitations which exist on the appellate review of findings of fact based in whole or part on the credibility of witnesses. 4. I was not expecting that counsel would necessarily be able to articulate an argument which I found convincing, but in fact no argument was articulated at all. 5. In these circumstances, I think that the grant of a stay which would last up until the appeal proceedings are disposed of by the Court of Appeal is out of the question. Even without taking into account the countervailing factors to which I will refer, there is simply insufficient ground for the Court to neutralise the effects of its decision until the appeal proceedings are dealt with. 6. It seems to me that the real question on this application is not whether orders should be stayed pending determination of the appeal. It is whether the circumstances require a stay or an extension of the order for possession for a period of time in the light of the COVID‑19 emergency. 7. I accept of course that the threat posed by COVID‑19 is a serious one, and that the Wallises are in a class of people who are particularly vulnerable if they contract the virus. But I must also bear in mind that contracting the virus even for vulnerable persons, is not a death sentence. 8. Perhaps more importantly, the risk of COVID‑19 infection cannot be completely eliminated, no matter how stringent the precautions imposed on the community are. Even without accepting the other evidence about the way in which the Wallises are conducting themselves, a self‑isolation regime which involves only travelling out of the home for necessary purposes such as purchasing food still involves a degree of risk, although, one hopes, a very small one. 9. Furthermore, I think there are at least three important countervailing considerations. The first, and most important concerns the possibility of the Wallises obtaining alternative accommodation. As I recorded in my principal judgment the Wallises have four other children apart from Mrs Rudek. There was no evidence before me (at least in any satisfactory form) as to the circumstances of those other children. The Court, therefore, has no idea whether they would be able, or willing, to accommodate the Wallises during the time that it will take for their appeal to be heard. 10. There was also evidence which established affirmatively that, as at the date of hearing of the application, it was possible to obtain short‑term rental accommodation in the Baulkham Hills area. I bear in mind that since then further regulations which restrict the ability to gather in groups of more than two have been introduced. But the fact is that there was no evidence before the Court when the application was presented to me that renting accommodation was impossible. That remains the position now. 11. Nor was there any evidence whatever to suggest that serviced apartment or hotel accommodation were not available. I think I can take judicial notice of the fact that such accommodation is apparently functioning, if only because people who are self‑isolating as a result of possible COVID‑19 exposure are using such accommodation. There was no evidence before me about whether removalists were still operating, but in the case of a serviced apartment or a hotel, the Wallises would not have to take their chattels in any event. 12. These gaps in the evidence were raised by counsel for Mrs Rudek, but when I took them up with counsel for the Wallises, she simply told me that she had no evidence and no instructions on the issue. 13. That is not an acceptable position for a party who has come to Court to ask for an indulgence in the form of a stay of the Court's orders. The responsibility lay on the Wallises and their legal advisors to present evidence which demonstrated that the Wallises were unable to obtain any alternative accommodation. The assertion by the Wallises recorded by their solicitor, Mr Dobrich, was wholly inadequate for this purpose. It did not state what inquiries had been made. In fact, Mr Dobrich did not even state that he believed it. 14. I am well aware that the COVID‑19 epidemic represents an emergency the like of which has not been experienced in this country for decades, but the mere invocation of the emergency should not result in a suspension of all critical thinking or judgment. In circumstances such as the present, the Court will not behave pedantically, or require the proof of matters which are obvious, but the fact is that the Wallises' application simply does not establish that they have nowhere else to go. I repeat, that at no stage was it suggested that they lack the money required to pay for alternative accommodation. 15. A second consideration is the attitude apparently taken by the Wallises to the Court's orders. There is nothing in the evidence before me which suggests that the Wallises ever did anything after 26 February to comply with the orders for possession and for removal of their chattels. In fact, there is no evidence that they ever even contemplated doing so. I have already recounted the circumstances in which this application came forward, and the Wallises' refusal to pay even the sum of $300 as a condition of obtaining a week's adjournment. 16. Counsel for the Wallises submitted that the imposition of an occupation fee was inappropriate. Counsel stated, not by reference to her own research, but by reference to what she said she had been told by her instructing solicitor, that planning regulations prohibited the house from being used for rental purposes. The suggestion appeared to be that it would be in some way unlawful for Mrs Rudek to receive any money from her parents on account of their use of the property. 17. None of the relevant statutory regulations were referred to, nor was I favoured with any authority in support of counsel's argument. I am not inclined to accept it. Planning regulations which prevent the renting out of residential accommodation for commercial purposes are well known, but that does not mean that in circumstances such as the present the Court cannot properly require the Wallises to make some payment for the enforced use of the property. Indeed, in his evidence before me on the principal hearing, Mr Wallis asserted that the reason his daughter wished him to leave the property was so that she could rent it out. 18. The proposition that a person who seeks equity must do equity applies to the grant of injunctions and it is equally applicable here. Invariably that principle means that the party seeking a stay must be prepared to undertake to compensate the opposing party against the possibility that at a final hearing the stay will not be sustained. In their application the Wallises offered an undertaking as to damages, but counsel made it clear that, consistently with the argument to which I have already referred, the Wallises did not accept that the undertaking would extend to mesne profits or some form of occupation fee. 19. The fact that that argument, as presented to me lacks any substance does not solve the problem. Should I grant a stay only on the basis of the undertaking for damages Mrs Rudek would be forced into yet another argument with her parents before she could obtain any form of compensation for their forcible occupation of her property. I do not think that is acceptable. 20. In my opinion an undertaking to pay a fixed sum (and I emphasise that the reasonableness of the sum itself was never questioned), for the remaining period of the stay would be the minimum condition necessary for the grant of any such relief. The fact that the Wallises are apparently not prepared to make any payment at all is in my view of itself an insuperable obstacle to their application. 21. More broadly, the Wallises' conduct shows a determined refusal to acknowledge that Mrs Rudek has won the litigation. Counsel repeatedly deplored the prospect of the Wallises being removed from what she described as "their home". The fact is, on the Court's findings, that the property belongs to Mrs Rudek, and since 2018 the Wallises have been trespassers. The course of this application shows that the difficulties which the Wallises now complain of are, at least partly, self‑inflicted. 22. Thirdly, there is the evidence about the current state of affairs at the house. The evidence before me was not the subject of cross‑examination, and it would not have been practicable for there to have been any such cross‑examination. But that does not mean that the Court must ignore the evidence of Mrs Rudek and her family. That evidence was given in sworn affidavits. It described the state of affairs which represents a continuation of the state of affairs disclosed in the evidence before me at the trial. Unfortunately, in the light of the findings made about Mr Wallis' behaviour, the evidence in the latest affidavits is only too credible. 23. As against that, one has simply a series of statements by the Wallises, or by Mr Wallis, and recorded by their solicitor. Usually in order to comply with the Evidence Act 1995 (NSW), s 75, evidence of that character would be given by the Wallises' solicitor on information and belief. As I have noted, the solicitor has not even deposed to his belief in the accuracy of what he has been told. 24. The affidavit evidence of Mrs Rudek and her family is vastly weightier than the recorded assertions of the Wallises, if those assertions have any evidentiary weight at all. There is no reason for the purposes of this application not to accept the Rudeks' evidence. 25. It might be argued that, in the circumstances of the present emergency, Mrs Rudek and her family should be prepared to put up with the conduct described in their affidavits. But this would be to ignore the debilitating effect of what, based on the evidence before me at the hearing, was a period of years of obnoxious and aggravating conduct which the Rudeks were forced to endure. Nor, even on their own, are the complaints necessarily trivial. The continued prosecution of the apprehended violence order against Mr Rudek, if not properly based, could well amount to harassment contrary to the terms of the order made by the Court. So, too, could the other conduct complained of. 26. The Court is not being asked to make any final findings on this, and I do not do so. The point is that Mr Wallis' ongoing behaviour may involve contempt of the Court's orders, as well as continuing to impose an entirely unreasonable burden on Mrs Rudek and her family. 27. For these reasons, I considered that the application for a stay of the possession order, even for a relatively short period of time, was not made out. 28. Similar reasoning applies to the application insofar as the Wallises sought a stay of the order for removal of their property. I should add that some of that property is not even in the ground floor of the house where the Wallises live. The schedule includes collectibles and other assets built up by Mr Wallis, which he left where they were when he and Mrs Wallis moved to the ground floor. It is notable that the Wallises have never claimed any entitlement to occupy the top two floors of the building (or the garden for that matter). They thus have no shadow of a claim to resisting the order for removal of their chattels as it applies to property outside the ground floor unit. Yet the Wallises appear never to have acknowledged this, nor made the slightest attempt to remove those items. 29. Finally I refer to the application insofar as it concerned the costs orders which I made. In argument counsel for the Wallises made it clear that she was seeking an order which would prevent Mrs Rudek even from moving to the assessment of her costs (assuming, as I do, based on the failure to respond to her solicitor's letter, that the figure in the letter is not agreed). 30. In my view, there is no justification for any such stay. The costs order represents an unsecured liability and Mrs Rudek needs to be able to protect her interests, should she choose to do so, by quantifying the order and being able to move to enforcement or attachment as quickly as possible. True it is that, as counsel pointed out, assessment proceedings may impose some costs on the Wallises. But that can hardly be a factor of any weight at all. 31. Of course, once the enforcement stage is reached the situation changes. But counsel for Mrs Rudek indicated that she would be prepared to submit to an injunction restraining her from proceeding to enforcement provided that some form of security was offered. The Wallises, however, after counsel had obtained instructions from them, declined absolutely to offer any such security, and accordingly the possibility of such an injunction fell away. 32. For these reasons, I considered that the Wallises' application could not succeed, but I was left with a residual concern. As we have seen, I considered that there were gaps in the evidence about whether the Wallises could obtain alternate accommodation. The nature of the crisis and the steps taken by various Australian governments to respond to it changes from day to day. I was left with some doubt as to whether the Wallises really will be able to move out (and especially be able to move their possessions out) by Thursday, as the orders currently require. 33. Despite the countervailing factors which I have referred to, I considered that in the circumstances I should give the Wallises a further opportunity to make an application for a suspension of the order for vacant possession and the order for removal of their chattels. In my orders, I therefore, reserved an opportunity to the Wallises to make such a further application to me on short notice before Thursday. 34. The orders of the Court were: 1. I grant leave to the plaintiffs to make an application to me either at 4.15pm on 31 March or at 4.15pm on 1 April, for an extension of the order for possession and the order for removal of the chattels, such leave to be exercised by notice given not less than six hours before the time at which the application is to be made. 2. I order that the plaintiffs' notice of motion filed 27 March 2020 be otherwise dismissed. 3. I order that the plaintiffs pay the defendant's costs of the notice of motion. ********** Amendments 03 April 2020 - amend [47] and [58] 17 April 2020 - [8] amend typographical error DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 April 2020