Benjamin v Blundell [2010] NSWSC 31

In this case judgment for possession was entered by consent (the borrower agreed). Pursuant to the consent judgment a writ was issued and the Sheriff evicted the borrower. The borrower then broke back into the house and retook possession. The lender then sought and obtained a writ of restitution so that the borrower could be re-evicted. The borrower again broke back into the house and retook possession.

The lender then sought orders against the borrower for contempt of court. The Court then made orders that the borrower be committed to prison for breach of the writ of possession and breach of the writ of restitution. However this order was stayed and then vacated. It is possible the Judge in question was not sure of himself because he then made orders for the Registrar to apply by motion for the borrower to be punished for contempt. The Registrar then advised the lender that the Crown Solicitor had advised that it was not appropriate to take contempt proceedings because both the writ of possession and the writ of restitution were directed to the Sheriff and not to the borrower.

The Court then ordered that the borrower vacate the property (the order was directed at the borrower and not at the Sheriff) within 48 hours. Presumably, if the borrower breaks in again an order for her arrest will be issued.

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