procedural. The stay of the possession order was to be discharged. The respondent was to be at liberty to procure a writ of possession forthwith. The respondent was to list belongings outside the ground floor...
Key principles
The stay of the possession order was discharged after the Court considered the appellants’ breaches of undertakings and orders, changed circumstances concerning the COVID-19...
The Court considered that discharging the stay did not prevent the appellants from seeking a further stay or other consequential relief if they succeeded in their pending appeal...
For obtaining vacant possession, the Court preferred discharge of the stay and liberty to procure a writ of possession over a mandatory injunction requiring the appellants to...
Issues before the court
Whether the stay of the order for vacant possession should be discharged.
What mechanism should be used to secure vacant possession and deal with the appellants’ belongings?
Whether to make a non-harassment order against Mr Rudek in favour of the appellants.
How to allocate costs of the notices of motion.
Plain English Summary
The Court had earlier paused an order requiring the Wallises to give up possession while their appeal continued, relying on their promises about how they would use the property. The respondent later sought to end that pause, citing breaches and conflict. White JA found important breaches, considered that the pandemic circumstances had changed since the stay was granted, and noted the continuing financial costs of occupation and litigation. The stay was discharged. The respondent could seek a writ of possession, and the Court set a process for listing and removing belongings. The Court did not make the appellants’ requested non-harassment order against Mr Rudek because the evidence was disputed and did not establish sufficiently serious conduct. The underlying appeal remained undecided.
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Deep Dive
2,698 words · generated 28/09/2026
What happened
Cited legislation
No linked legislation citations have been extracted yet.
This was an interlocutory decision in an appeal about possession of a ground floor unit at a property in Schofield Parade, Pennant Hills. The underlying appeal remained unresolved: White JA recorded that it had been expedited and that judgment was reserved, and proceeded on the basis that the appellants’ case was arguable, but “not more than arguable” [5]. The decision therefore addressed the temporary arrangements pending the appeal, rather than finally deciding who was entitled to possession.
On 5 March 2020, Parker J made final declarations and orders, including that the respondent was entitled to vacant possession of the ground floor unit and that the appellants had to provide vacant possession within 28 days [1]. The primary judge later dismissed the appellants’ application for a stay [2]. On 7 April, White JA stayed the possession order pending determination of the appeal or further order. The stay was made on the basis of undertakings by the appellants, including that they remove belongings from the pool area and carport, and that they not go onto parts of the property outside their ground floor unit except as needed to access it [3].
The original stay was made during the early stages of the COVID-19 pandemic. In the earlier reasons, White JA had considered the appellants’ age and health conditions, and the public-health context then applying. He also identified the risk of conflict at the property as an important countervailing concern. The earlier reasons described how removing the appellants’ belongings from areas they did not claim might reduce sources of conflict [4].
In July 2020, the respondent applied to discharge the stay. She relied on alleged breaches of undertakings and orders, including Mr Wallis’s use of the backyard and an alleged assault or threat during a confrontation on 6 August. The appellants also sought a non-harassment order against Mr Rudek [8]–[9].
The Court found that the 6 August video showed Mr Wallis working on woodwork in an area outside the ground floor unit. The footage also showed him poking the woodwork at the camera, then moving towards it and assuming a position consistent with a threat to punch. The judge could not determine whether a punch was thrown, whether Mr Wallis caught Mr Rudek’s hand, or whether he went no further than a threatening position. For the application, however, the judge was satisfied to the civil standard that Mr Wallis contravened both his undertaking not to go into that part of the property and the order restraining harassment or intimidation [7].
The Court also found that Mr Wallis’s continued use of the backyard was established and admitted, though the extent of that use was disputed. The undertaking contained no exception allowing him to use the backyard when no one else was present. Photographs and the video supported the finding that he used a workbench in the backyard or side walkway [10]. The Court considered the respondent’s other allegations but did not resolve all of them, including the dispute about where belongings had been placed [9].
White JA discharged the stay [20]. The respondent was to be at liberty to procure a writ for possession, rather than obtain the separate mandatory injunction she also sought [21]–[23]. The judgment also set out a process for the parties to identify and remove belongings outside the ground floor unit [24]–[26]. The appellants’ request for a non-harassment order against Mr Rudek was not granted [28]. Costs of the motions were made the parties’ costs in the appeal [29]–[30].
Why the court decided this way
The reasons combine several considerations rather than relying on one alleged breach. The judgment’s central conclusion is in paragraph 20: “Having regard to the breaches of the orders of Parker J and the undertakings that I have referred to, and to the change of circumstances concerning the COVID-19 pandemic over the last four months, I consider that the stay should be dissolved.”
First, the Court treated the undertakings as important conditions supporting the stay. The undertaking limiting access to areas outside the unit was explicit. The judge found that Mr Wallis’s work in the backyard and side walkway breached it, and that the 6 August incident also contravened the order against harassment or intimidation [7], [10]. The Court did not treat every alleged breach as established. It considered the delayed removal of chattels, but said its impact had passed and that the breach alone would not justify ending the stay [3 in the judgment’s sequence following the motions, see paragraph 3 of the merits discussion]. It also declined to resolve the conflicting evidence about possessions said to have been moved or stored on the respondent’s property [9]. This distinction matters: the decision relied on findings the judge considered sufficiently established, while leaving other disputed allegations undecided.
Second, the public-health circumstances had changed. When the stay was originally granted, the judge considered the restrictions then in force and the vulnerability of the appellants. By August, a later public-health order, dated 31 July 2020, was in force, and the restrictions were less tight than those applying in March [16]. The judgment did not say that the pandemic was over or that the appellants had no health concerns. It recorded Mrs Wallis’s continuing fear of a second wave and her concerns about health if required to vacate. The point was that the circumstances were different from those informing the April decision.
Third, ongoing occupation carried costs and conflict. The Wallises were paying more than $700 per month to store furniture and other items, while legal costs continued to accumulate [17]. White JA considered these circumstances reasons in favour of ending the stay, not maintaining it [18]. The judge was not satisfied on the evidence that they would be unable to obtain alternative accommodation if required to leave [18]. That is a finding about the evidence before the Court on this motion, not a general determination about their future housing options.
Fourth, the Court took account of the possibility of later relief if the appeal succeeded. Discharging the stay would not prevent the appellants from seeking another stay before possession was given up, seeking restoration of possession after success on appeal, or seeking consequential compensation if they were found entitled to continued possession [19]. These possibilities formed part of the balance, and were also matters Parker J had considered when refusing a stay [19].
As to enforcement, the Court referred to Taunton v Taunton [2019] NSWSC 1513. White JA generally agreed with Slattery J’s observations that an injunction restraining occupation would have to be enforced through contempt proceedings, which may be slower than execution of a writ by the sheriff. The judgment also noted that execution by a sheriff’s officer is less likely to lead to a breach of the peace [22]. On that basis, it ordered that the respondent could procure a writ of possession [23].
Before and after state of the law
This decision does not purport to announce a new general rule about stays, undertakings, or possession proceedings. It applies those matters to the particular procedural history and evidence before White JA. The judgment identifies the original stay as having been granted on the basis of undertakings and in light of the appellants’ vulnerability during the pandemic [3]–[4]. The later decision reassessed whether that interim arrangement should continue, considering subsequent conduct and changed circumstances [16]–[20].
Before this decision, the possession order had been made by Parker J, and the appellants’ first stay application had been dismissed by the primary judge [1]–[2]. White JA then granted a stay on 7 April, pending the appeal or further order, on the basis of undertakings [3]. In August, the Court discharged that stay. The underlying possession order was not newly made by this judgment: it was the earlier order whose operation had been paused.
The judgment’s treatment of enforcement is more specific. It favours the practical route of a writ of possession over a mandatory injunction in the circumstances before the Court. It explains that the writ mechanism is administered through the sheriff, while an injunction would depend on contempt proceedings, and refers to the comparative risk of a breach of the peace [22]–[23]. The reasons do not set out an exhaustive test for choosing between these mechanisms, and should not be read as doing so.
The Court also addressed implementation rather than leaving the parties to resolve belongings informally. The respondent was to prepare a list within two business days of the items outside the unit said to belong to the appellants and requiring removal. The appellants were then to have seven days after service to respond with their own list, including disputes about ownership and items they claimed [24]. A further 21 days was allowed for removal of items whose ownership was common ground [24]. Items the appellants disclaimed could be treated by the respondent as abandoned; disputes where both sides claimed ownership would have to be resolved in another proceeding [25]–[26].
The judgment does not determine the underlying ownership dispute, nor does it finally resolve the parties’ broader rights to occupy the property. It expressly preserves the possibility of further relief if the appellants succeed in the appeal [19]. Its practical effect is therefore to alter the interim position pending that appeal, while leaving the appeal itself undecided.
Key passages with plain-English translation
At [5], White JA says the appeal is “arguable, but not more than arguable”. In plain English, the Court was not treating the appeal as hopeless, but it was not expressing a view that the appellants were likely to succeed. That assessment was the footing for dealing with the interim applications, not the final determination of the appeal.
At [7], the judge distinguishes what the video established from what remained uncertain. The footage showed conduct consistent with a confrontation, but it did not allow the judge to decide whether a punch was actually thrown or whether Mr Wallis caught Mr Rudek’s hand. For the purpose of the application, the judge was satisfied to the civil standard that the conduct breached the undertaking and the non-harassment order. The finding was therefore limited to the interlocutory question, and did not resolve every detail of the incident.
At [10], the Court describes the backyard use as a “clearly established” breach of undertaking. Mr Wallis said he had mistakenly believed he could go into the rear yard when no one else was there, provided he did not interact with anyone. The judge noted that the undertaking did not contain that qualification. In plain English, a person’s unilateral understanding did not alter the terms of the undertaking recorded by the Court.
At [18], the judge treats ongoing storage costs and accumulating legal costs as reasons to dissolve the stay. This is a fact-specific assessment of the evidence about the Wallises’ circumstances. The judgment also says the evidence did not satisfy the judge that they would be unable to obtain alternative accommodation. It does not make a broader finding about the availability or affordability of accommodation generally.
At [19], the Court explains that lifting the stay did not shut off possible remedies if the appellants succeeded on appeal. They could seek a further stay before giving up possession, restoration of possession after success, or compensation if the eventual outcome established they were entitled to continued possession. In plain English, the interim decision did not decide what relief might be available after the appeal.
At [22]–[23], the Court explains why it chose the writ route. Contempt proceedings to enforce an injunction may be slower than a sheriff’s execution of a writ, and the latter route was considered less likely to cause a breach of the peace. The Court accordingly allowed the respondent to procure a writ. This reasoning supports the procedural choice made in this case; it is not framed as a universal rule for every possession dispute.
At [24]–[26], the Court sets out a sequence for dealing with belongings. Each side was given an opportunity to identify and dispute ownership, with removal required for items whose ownership was common ground. If both sides claimed an item, the judgment said the dispute would need to be resolved in another proceeding.
What fact patterns trigger this precedent
The decision is most directly relevant to an interim stay of a possession order that was granted on the basis of undertakings, where a party seeks to have the stay discharged after alleged non-compliance. The facts that mattered here included a clear undertaking limiting access to areas outside the occupied unit, evidence of continued use of those areas, and video evidence of a confrontation that the Court considered a breach of the undertaking and a restraint order [7], [10].
It may also be relevant where the circumstances supporting a stay have materially changed. Here, the Court compared the COVID-19 restrictions in place when the stay was granted with those applying by the time of the discharge application [16]. The decision also considered continuing financial costs of storage and legal proceedings, and the persistence of conflict between the occupants and the person seeking possession [17]–[18].
The judgment may be useful where parties dispute how to enforce an order for possession. It records judicial observations supporting consideration of a writ executed by the sheriff rather than an injunction enforced through contempt proceedings, particularly where enforcement method and the risk of a breach of the peace matter [22]–[23].
It also illustrates the value of separating proved breaches from allegations that cannot be resolved on the interlocutory evidence. The Court found some breaches, declined to resolve a dispute about the location of goods, and did not treat every complaint as determinative [3, 7, 9–10]. The judgment should not be read as deciding that any breach will automatically result in discharge of a stay. Its reasoning depends on the particular undertaking, evidence, changed circumstances, and available safeguards in this matter.
How later courts have treated it
The judgment extract does not provide any decisions after 11 August 2020 discussing or applying Wallis v Rudek (No. 2) [2020] NSWCA 175. Accordingly, later judicial treatment cannot be established from the provided text and is not asserted here.
The judgment itself refers to Taunton v Taunton [2019] NSWSC 1513, adopting Slattery J’s observations in general terms about the relative enforcement processes for injunctions and writs of possession [22]. It also refers to two earlier proceedings in the Wallis litigation: the primary judge’s possession decision, Wallis v Rudek (No. 2) [2020] NSWSC 215, and the primary judge’s refusal of a stay, Wallis v Rudek (No. 3) [2020] NSWSC 338 [1]–[2]. Those references explain the procedural history; they are not later treatment of this Court of Appeal decision.
Still-open questions
The central appeal remained pending when this judgment was delivered. The extract says that judgment was reserved, but does not give the result of that appeal [5]. It therefore leaves unresolved the final entitlement to possession and any consequential relief dependent on the appeal’s outcome.
The judgment does not determine whether a punch was thrown during the 6 August incident. It records competing accounts and finds, for the application, that the conduct amounted to a breach of the undertaking and the restraint order [7]. Nor does it resolve the ownership or location disputes concerning all belongings. Where both sides claimed an item, the judgment contemplated resolution in another proceeding [26].
The decision does not state how the parties ultimately implemented the list process, whether the writ was issued or executed, or whether the appellants obtained alternative accommodation. It also does not determine the final costs outcome, because the costs of the motions were reserved as the parties’ costs in the appeal [29]–[30].
Finally, the judgment does not set out a general threshold for discharging a stay based on breach of an undertaking, nor a comprehensive framework for selecting a writ rather than an injunction. Its reasoning is tied to this procedural history and the evidence before the Court. Those broader questions should not be answered by extending this decision beyond what it says.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
Judgment (4 paragraphs)
[1]
Solicitors:
P Dobrich & Co (Appellants)
Optic Lawyers (Respondent)
File Number(s): 2020/95805
[2]
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[3]
Judgment
HIS HONOUR: On 5 March 2020 Parker J made final declarations and orders, including a declaration that the defendant (the present respondent) was entitled to vacant possession of the ground floor unit of the building at the property in Schofield Parade, Pennant Hills ("the Property") and an order that the plaintiffs (the present appellants) provide vacant possession of the ground floor unit within 28 days, subject to any further order of the Court (Wallis v Rudek (No. 2) [2020] NSWSC 215). His Honour also ordered that:
"the first plaintiff not harass, intimidate, stalk or assault the defendant, her husband Vass Rudek or her children between the date of these orders and the date upon which the plaintiffs vacate the property".
On 30 March 2020 the primary judge dismissed the appellants' notice of motion seeking a stay of those orders (Wallis v Rudek (No. 3) [2020] NSWSC 338).
On 7 April 2020, for reasons given on 6 April 2020, I noted certain undertakings given by the appellants to the Court. I made the following order:
"On the basis of the undertakings order 4 of the orders made by Parker J on 5 March 2020 be stayed pending the determination of the Appeal or until further order of the Court of Appeal."
Order 4 of the orders made by Parker J on 5 March 2020 was the order requiring the plaintiffs to provide vacant possession of the ground floor unit within 28 days.
I am now sitting as a single judge of appeal exercising the jurisdiction of the Court of Appeal to determine, amongst other things, an application made by the respondent to discharge that stay.
Included amongst the undertakings that I noted and on the basis of which I ordered a stay of the order for possession were undertakings by the appellants that within seven days they would remove, or cause to be removed, their belongings from the pool area and the carport of the Property and an undertaking that they would not "go to any part of the Property beyond the ground floor unit in which they currently reside other than as required for them to access the ground floor unit."
In my reasons of 6 April 2020, I said:
"18 During March, the COVID-19 pandemic escalated rapidly. The appellants, it seems, had not taken any step to attempt to comply with the primary judge's orders, made on 5 March 2020 but foreshadowed on 26 February 2020, that they deliver vacant possession of the property. Their solicitor deposes that the first appellant is 75 and the second appellant is aged 80. He deposes that the first appellant has an existing heart condition and that the second appellant has a slow-growing brain tumour that is said to impact her heart and blood pressure, and she is on blood pressure medication. They are of an age and in a state of health that makes them vulnerable to serious illness or death if they were to become infected with the virus. As I have said, public health advice is that so far as possible, persons in their position should remain at home. The appellants submit that it is antithetical to that public policy that they be required to vacate.
...
30 The real objection to the stay of the order for the delivery of vacant possession is the threat of continued conflict at the property. But for that threat the current health crisis would be such that having regard to the age and medical condition of the appellants, they should not be exposed to any additional risk of infection. It is true that they have not adduced evidence as to how removalists might be being expected to guard against the spread of infection. Nonetheless, requiring the appellants to move would be to increase their exposure to the risk of infection in a way which is contrary to public health policy.
...
35 ... the catalyst for the particular incidents creating a conflict appears to have been the first appellant's objection to the respondent's family using their property, either the pool area or, it might be inferred, the carport for their own purposes in a way which appears to him to interfere with his right to use the same areas for his purposes. In his first judgment, the primary judge said (at [108]) that:
'One of the striking things about the evidence in this case concerning Mr Wallis' behaviour is that there seems no shadow of a justification for his view that his entitlement to control the property extends beyond the ground floor living area and covers the garden, the swimming pool, and the external studio. Nothing in the evidence before me suggests that there was ever any agreement, even on the Wallises' own case, which would justify that view. Yet it is only at the end of the case that the Wallises agreed to do something which, insofar as I can see they have always been required to agree to.'
...
39 It seems to me that if the appellants remove their goods from areas to which they make no claim, then the sources of conflict would be very much, if not entirely, removed. ...
...
41 The appellants' counsel has suggested that the first appellant should be permitted to go onto the carport for a designated period on the basis that the carport is arguably a portion of the Ground Floor Unit. For the reasons I have given, it does not appear to me that that is arguable in the way that the appellants' case was framed below. Nor do I think that to be a sensible suggestion to avoid conflict with the respondent and her family who are entitled to use and go onto the carport.
...
43 There is already in force an order by the primary judge that the first appellant not harass, intimidate, stalk or assault the defendant, her husband or her children. That order remains on foot.
44 It appears to me with these arrangements in place, the opportunities for conflict of the kind the respondents have described should be removed, but there will be liberty to apply in case that expectation proves sanguine."
The appeal was expedited. Judgment on the appeal is currently reserved. In dealing with the present applications, I proceed on the same basis as I did on 6 April 2020, namely that the appellants' appeal is arguable, but not more than arguable.
On 28 July 2020 the respondent filed a notice of motion in which she sought the following orders:
"1 The order for the stay made on [6] April 2020 by White J[A] with respect to order 4 of the orders made by Parker J of the Supreme Court of New South Wales on 5 March 2020 be lifted.
2 The Appellants to forthwith vacate the property located at 2 Schofield Parade, Pennant Hills 2120 (the 'Property').
3 The Appellants are to remove all belongings from the Property which are owned by them within 7 days of the date of these orders."
On 30 July 2020 the appellants filed a notice of motion, the relevant part of which for today's purposes sought the following order:
"5 An order that, until further order, the Respondent and/or Mr Rudek not harass, intimidate, stalk or assault the First and/or Second Appellants."
The matter came before me on 3 August 2020 when a number of affidavits were read. The hearing was adjourned to today principally to enable the appellants to inspect certain video footage that they had not had the opportunity to inspect, some of which was relied upon in the respondent's affidavits.
The respondent complains of a number of alleged breaches of undertakings given by the appellants on the basis of which the order for possession was stayed. She complains of breaches of the orders of Parker J, or other conduct on the part of the first appellant, Mr Wallis, that is said to be intolerable.
The first matter relied upon is the breach of an order made by Parker J requiring the removal of chattels by the appellants. The chattels were required to be removed within 28 days. They were not removed for some weeks after the time they should have been removed. Although I do not condone the breach, its impact has long since passed and would not itself be a sufficient reason for dissolving the stay.
Of more significance is the respondent's submission that Mr Wallis has breached the non-harassment order made by Parker J, including on 6 August when the present hearing was adjourned.
There are two matters which are particularly relied upon as amounting to harassment of the respondent or her family. The first concerns a confrontation concerning the respondent's daughter (Mr Wallis' granddaughter) and Mr Wallis. In the exchange of angry words, Mr Wallis is said to have stated on 18 July 2020 that if he were not a Christian, he would hit or kill Mr Rudek. If the words said to have been used were ultimately found to have been used, I am not satisfied that that confrontation would warrant a dissolution of the stay. There is an unresolved issue as to the circumstances in which the confrontation arose. If the Wallis's version of events is correct, those circumstances might have provided some explanation for angry words having passed.
Of more significance for today's purposes is the evidence of Mr Rudek of having been assaulted by Mr Wallis on 6 August 2020.
It seems to be clearly established that on 6 August Mr Wallis, contrary to the undertaking he gave to the Court on 6 April 2020, was carrying out woodworking activity in the backyard of the Property. This was observed by Mr Rudek who took some photographs which show Mr Wallis working on a piece of wood carving under a side or back covered passage. Mr Rudek started filming Mr Wallis on his phone. The video has been shown in the proceedings today and has been admitted as an exhibit. It records Mr Wallis muttering, apparently to himself, some unflattering words concerning Mr Rudek. More significantly, it then shows Mr Wallis poking the long piece of woodwork at the camera. It then shows Mr Wallis returning to work on the woodwork before turning again towards the camera, moving to what appears to be close to it, raising his left elbow and bringing his right fist into the position to throw a punch. Whether, as Mr Rudek has deposed in his affidavit, a punch was thrown, or whether, as he told the police in an interview, he caught Mr Rudek's hand apparently to prevent a punch being thrown, or whether Mr Wallis went any further than merely assuming a threatening position is unclear. But the continuation of the video shows an obvious immediate disturbance of the video camera consistent with some confrontation. I am satisfied to the civil standard, and for the purposes of this application, that Mr Wallis's conduct involved not only a contravention of his undertaking to the Court not to go onto this part of the property, but also a contravention of the order restraining him from harassing or intimidating Mr Rudek.
There are other breaches of the undertakings that also are relied upon by the respondent.
The next concerns what is said to be a breach of undertaking as to the removal of possessions that had been stored in the pool. The respondent's position is that some possessions were removed from the pool, but they were not removed from the property. Instead they were stored by Mr Wallis on the respondent's property. I need not go into the details of that. I do not think it possible on this application to resolve the issues raised on the affidavits. Mr Wallis' position is that the goods, at least some of which he accepts are his goods, were always stored on the property but not in the pool, or were brought to their present location not by him, but by Mr Rudek. It is unnecessary to resolve the conflicting evidence on this question.
The next alleged breach relied upon by the respondent is a breach of undertaking by Mr Wallis' continuing to use the property for his own purposes. That breach is clearly established. Indeed, it is admitted, although the extent of the alleged breach is not admitted. Mrs Rudek deposed in an affidavit on 22 July 2020 that Mr Wallis had added an extra workbench to the backyard and that he was using that workbench daily, spending a significant amount of time in the backyard. In response, Mr Wallis said in his affidavit of 31 July 2020 that he had gone into the rear yard over the last few months on "three or so times". He said he had been under the mistaken impression that he could go to the rear yard when no-one else was there, if he did not interact with anyone. There was no such qualification to the undertaking given by Mr Wallis. There is also evidence from Mrs Rudek of her having photographed Mr Wallis in the backyard at his workbench on 12 occasions between 24 April and 6 July 2020, in each case working in either the backyard or in a side walkway at his bench. As I have said, the video recording on 6 August 2020 shows Mr Wallis working at a workbench in what I take to be the side walkway.
The next matter relied upon by the respondent is a breach of the undertaking not to go onto any part of the property by Mr Wallis' continuing to park his motor vehicle in the carport or driveway. This was a matter which was addressed at the hearing on 6 April 2020. Mr Wallis admits that on one occasion he parked his car in the carport in order to wash it and has said, as I understand his evidence, that on a few occasions he had parked his vehicle temporarily in the carport to enable his wife to take groceries into the ground floor unit. It is not easy to reconcile Mr Wallis' evidence as to the extent of his use of the carport with a photograph taken by Mrs Rudek showing his having placed a cover over his car whilst it was in the carport on one occasion. Nonetheless, it seems clear enough that, except on odd occasions, Mr Wallis' not parking his car in the carport. This is because the respondent has parked there or has placed a trailer in the carport which would, in any event, preclude Mr Wallis from using it.
There are disputes in relation to activities concerning the trailer. It is unnecessary to go into those matters.
Mr and Mrs Wallis make their own complaints as to provocative behaviour by Mr Rudek. They complain for example that Mr Rudek has removed rubbish from their rubbish bin and placed it in front of their front door. That Mr Rudek has placed rubbish there does not seem to be in real contest. He says that he was responding to the misuse of the rubbish bins. It is not an instance that redounds to his credit.
There are other complaints of provocation. It is said that Mr Rudek has moved a compressor or generator to block the Wallis's access to their front door and that he has parked the trailer in such a way as to hinder access. The Wallises rely upon these matters in support of their submission that a non-harassment order should be made against Mr Rudek.
I will deal first with the application to dissolve the stay of the order for possession.
When that order was made the COVID-19 pandemic crisis was in its early stages. There was then in force the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 dated 30 March 2020. It placed considerably tighter restrictions on movement and gathering than presently obtain under the Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No. 4) of 31 July 2020. Mrs Wallis says that she fears a second wave of COVID infections in this State and remains fearful of her health if required to vacate the premises. But it does seem to me that circumstances have changed from those obtaining on 6 April 2020 when I decided to stay the order for possession.
Mrs Wallis deposes that she and Mr Wallis survive on their pension and that she has little left in savings. She deposes that she and Mr Wallis have moved furniture and items from upstairs into a storage facility which is costing them over $700 per month. In addition, legal costs are accumulating.
I think that the circumstances that the Wallises are incurring ongoing storage costs whilst they remain in occupation of the ground floor unit, and that legal costs continue to accumulate whilst the conflicts between them and the Rudeks persist, are reasons in favour of dissolving the stay, rather than retaining it. The evidence as to the Wallis' financial position is not such that I could be satisfied they would be unable to obtain alternative accommodation if required to vacate.
I take into account that lifting the stay of the order for possession would not preclude the appellants from seeking a further stay if they succeed in their appeal before possession is given up. Nor will lifting the stay preclude their seeking restoration of possession if they succeed on appeal. Nor would it prevent their seeking consequential orders for compensation if, on determination of the appeal, it is found that they are entitled to continued possession of the ground floor unit. These are the same matters which Parker J took into account in his judgment on 30 March 2020 when he declined to stay the order for possession.
Having regard to the breaches of the orders of Parker J and the undertakings that I have referred to, and to the change of circumstances concerning the COVID-19 pandemic over the last four months, I consider that the stay should be dissolved.
The respondent seeks an order that within 28 days the appellants remove all their belongings from the property. They also seek what is in effect a mandatory injunction to require them to vacate the property.
In Taunton v Taunton [2019] NSWSC 1513, Slattery J made observations with which I generally agree as to whether it is preferable to grant an injunction to restrain a person from continuing in occupation of property rather than from making an order for possession and giving leave for the issue of a writ of possession to be executed by the sheriff. His Honour observed that the disadvantage of pursuing only the former course is that the order can only be enforced by way of contempt proceedings and that the machinery for bringing contempt proceedings is likely to be slower than the machinery for execution of a writ of possession by the sheriff (at [11]-[13]). His Honour also observed that proceeding by way of execution of a writ by a sheriff's officer is less likely to lead to a breach of the peace.
As well as an order discharging the stay of the order for possession that I granted on 7 April 2020, I will also order that the respondent be at liberty to procure the issue of a writ for possession forthwith. Doubtless there will be some delay between the making of those orders and the execution of the writ, but that will be a matter for the sheriff.
It will be necessary for the appellants' goods to be removed, including such of their goods as remain on parts of the property other than in the ground floor unit. Ms Oliak, who appears for the appellants, rightly drew attention to the potential for further conflicts or disagreements in relation to what items are owned by the appellants and should be removed. The course which commends itself to both parties if I were to proceed, as I have now indicated I propose to proceed, is for the respondent and Mr Rudek first to prepare a list of those items on the property (other than the ground floor unit) which they say is property of the appellants or either of them, and which they require to be removed. The respondent offers to provide such a list within two business days and that timeframe should be adopted. I think however that the appellants should be provided with a further seven days in which to provide an answering list, that is to say a list which either disputes that items listed by the respondent as belonging to the appellants and are required to be removed by disputing ownership, or which asserts that other items stored on the property not included in the respondent's lists are items claimed by the appellants or either of them, and which they should be permitted to remove, or both. The list from the appellants should be served within seven days after service of the respondent's list. I will then provide a further 21 days to require the appellants to remove those items which it is common ground belong to the appellants and are stored on the property.
The respondent accepts that if she identifies an item or items as belonging to the appellants which they disclaim as their property, that no further order need be made in respect of the disposal of those items. She will treat the items as abandoned and deal with them as she sees fit. As I understand it, the appellants have raised no objection to that course.
If both parties claim ownership of some items, then that dispute will have to be resolved in some other proceeding.
I direct counsel for the respondent to bring in short minutes of order consistent with these reasons and will otherwise dismiss the respondent's notice of motion, save as to costs.
In relation to the appellants' notice of motion of 30 July 2020 I consider that, having regard to the currently abbreviated period of time in which the appellants will be entitled to remain in possession of the property, subject to any orders that might be made on the determination of the appeal, that it is unnecessary to make the order restraining Mr Vass Rudek from harassing, stalking or intimidating the appellants. Having regard to the conflict of evidence in relation to the alleged acts of harassment, intimidation or stalking carried out by Mr Rudek, I would not be satisfied on the present affidavits that sufficiently serious conduct on his part has been established as would warrant the granting of the orders sought.
As to the costs of the two notices of motion and the costs of the appellants' notice of motion filed on 8 May 2020 which was not pursued, I think that underlying all of the notices of motion remains the dispute as to who is entitled to possession of the ground floor unit. It is true that some considerable parts of the notice of motion relate to the conduct of Mr Wallis on parts of the property other than the ground floor unit. Notwithstanding that, I think that the justice of the case would be best served by ordering that the costs of each notice of motion be the parties' costs in the appeal. In other words, whoever succeeds on appeal and obtains their or her costs will be entitled to the costs of each of the notices of motion.
I direct that counsel bring in short minutes of the further orders accordingly. The short minutes should provide that, save for orders 1-3 of the appellants' notice of motion filed on 30 July 2020 that notice of motion be dismissed. It should provide for the other orders that I have already indicated in relation to the respondent's notice of motion and should provide for the costs of all three notices of motion as I have indicated.
[4]
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Decision last updated: 13 August 2020
The stay of the possession order was to be discharged. The respondent was to be at liberty to procure a writ of possession forthwith. The respondent was to list belongings outside the ground floor unit said to belong to the appellants; the appellants could provide an answering list within seven days after service; and they were to remove items whose ownership was common ground within a further 21 days. The appellants’ motion was dismissed except for orders 1–3, whose content is not set out in the judgment extract. Costs of the three notices of motion were to be the parties’ costs in the appeal. Counsel was directed to bring in short minutes [23]–[30].