Commonwealth Bank of Australia v Stackman

Catchwords: LAND LAW – possession of land – where defendant re-entered land after execution of writ – where writ of restitution sought – where service of judgment with endorsement threatening committal or sequestration authorised

Legislation Cited: Supreme Court Rules 1970 (NSW) Part 42 r 6
Uniform Civil Procedure Rules 2005 (NSW) r 40.7

Cases Cited: ANS Nominees Pty Ltd v Beverly Manufacturing Co Pty Ltd [1979] 2 NSWLR 875

Texts Cited: Nil

Category: Procedural rulings

Parties: Commonwealth Bank of Australia (Plaintiff)
Alena Claire Stackman (Defendant)

Representation: Counsel:
D Mustafa (Plaintiff)
No appearance (Defendant)
Solicitors:
Dentons Australia (Plaintiff)
Self-represented (Defendant)

File Number(s): 2023/90622

Publication restriction: Nil

Judgment

1. These proceedings commenced on 20 March 2023. The proceedings sought possession of a property known as 56N Pakington Street, also known as Willow Lane, in Walcha. The order for possession and a liquidated sum was sought against the defendant by reason of her default under a credit arrangement with the bank. The property was mortgaged to the bank as security for the loan. Default judgment was entered for possession of the land and for the sum of $248,611.23 on 4 September 2023.

2. A writ of execution, which had been issued by the plaintiff on 22 January 2024, was executed by the Sheriff on 22 March 2024. Subsequent to the obtaining of possession, the plaintiff's agent observed that animals remained on the property and that persons connected to the defendant had entered again into possession of the property. A lengthy affidavit by Lisa Pedley of 8 May 2025 details the events which have taken place since the execution of the writ. The final position is that as at 18 December 2024 the persons associated with the defendant were found to be in occupation of the property.

3. In those circumstances the plaintiff seeks first, a writ of restitution to restore the plaintiff to possession of the land and secondly, an order under UCPR r 40.7 that a sealed copy of the Court's Judgment with an endorsement informing the defendant and those said to be in occupation of the land that they were liable to imprisonment or sequestration if they remained on the land or re-entered the land.

4. I am satisfied from Ms Pedley's affidavit that persons apparently related to the defendant have been from time to time and still are in occupation of the land and also that the defendant has not removed from the land animals and other property belonging to the defendant. The plaintiff has been unable to regain possession of the property as a result of threats of violence by those who have occupied and continue to occupy the property.

5. In all of those circumstances it seems to me that the plaintiff is entitled to a writ of restitution and is entitled to an order under r 40.7 in an endeavour to regain and retain possession of the property.

6. The width of the rule may be ascertained from the decision of Needham J in A**NS Nominees Pty Ltd v Beverly Manufacturing Co Pty Ltd [1979] 2 NSWLR 875, a decision which dealt with the rule’s predecessor, Part 42 r 6 of the Supreme Court Rules 1970 (NSW). That rule also provided for committal or sequestration where the Court had made an order which had not been complied with.

7. Needham J distinguished the rule from the situation where a contempt of Court is alleged. He said at 878:

It follows in my opinion from the fact that Part 42 is directed to the enforcement of judgments that Rule 6 of that part provides procedures whereby the person who holds the judgment or has the benefit of an order of the Court may obtain satisfaction of that judgment or performance of that order. Although the provisions of r 6 are in the nature of proceedings for contempt, their purpose is, as I have said, the enforcement of a judgment or order. …It is an indirect power to be used to persuade that person to perform the act required to be done under the judgment.

8. In the present case the particular act is to give vacant possession of the land. The threat of committal is to persuade the defendant to comply with the order for possession which was enforced by the writ of execution and will now be again enforced by the writ of restitution.

9. A failure of the defendant to comply also by the removal of the animals and other property will enable the plaintiff to seize and sell them, about which the defendant has already been warned.

10. Accordingly, I make the following orders:

11. Leave for the issue of a writ of restitution to restore to the plaintiff possession of the land comprised in folio identifiers 23/241480 and 25/241480 being the land situated at and known as 56N Pakington Street (also known as 'Willow Lane'), Walcha in the State of New South Wales.

12. Order pursuant to UCPR r 40.7 that a sealed copy of the Court’s judgment in these proceedings of 4 September 2023 be issued with the following endorsement:

Alena Claire Stackman, Greg Stackman and Glen Stackman, you are served with a copy of this judgment and you are liable to imprisonment or to sequestration if you do not give possession of the land comprised in folio identifiers 23/241480 and 25/241480 being the land situated at and known as 56N Pakington Street (also known as 'Willow Lane'), Walcha in the state of New South Wales (Property) to the plaintiff, or if you remain upon that Property, of if you re-enter that Property after possession has been delivered to the plaintiff. (Amended Judgment)

3. Order pursuant to UCPR r 40.7 that personal service of the Amended Judgment on the defendant, Greg Stackman and Glen Stackman be dispensed with and in lieu of personal service, service be effected by:

a. leaving sealed copies of Amended Judgment, in separate sealed envelopes addressed to each of them by name respectively, in the letter box at 56N Pakington Street (also known as 'Willow Lane'), Walcha in the State of New South Wales; and

b. sending sealed copies of the Amended Judgment to each of the defendant, Greg Stackman and Glen Stackman by prepaid post, in separate sealed envelopes addressed to each of them by name respectively, to 56N Pakington Street, (also known as 'Willow Lane'), Walcha NSW 2354;

c. sending a sealed copy of the Amended Judgment to the defendant by email as a PDF attachment to astackman@gmail.com.

d. Sending a text to the defendant on 0427 809 134 with a message: “Important Court documents for you have been sent by post and delivery to 56N Pakington Street, (also known as 'Willow Lane'), Walcha NSW 2354 and emailed to astackman@gmail.com.”

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