Firstmac Fiduciary Service v Gilmour [2013] NSWSC 570

The lender had been granted a writ of possession, but the borrower successfully delayed the execution of the order several times. The borrower was eventually evicted but, after the lender had taken possession, he had returned to the property and changed the locks without lawful authority. The lender had returned to court to ask for a writ of restitution to restore their possession to the property. The court had granted this, however the borrower had refused to vacate the premises. The lender had returned to court a second time and a further order for restitution was made. The borrower had been forcibly removed from the property with the assistance of police and given a sealed copy of the judgment, which notified him that if he did not give possession of the property to the lender, or if he re-entered the property, he could be imprisoned. Once again, the borrower returned to the property and changed the locks. He wrote to the lender and told them he had no intention of ever giving them possession.

The lender asked the court for a third order for restitution and, this time, an order the borrower was guilty of contempt. The order for restitution was made. The borrower did not file any evidence and did not attend the court when the contempt charge was heard.

The judge found the borrower guilty of contempt by re-entering the property in disobedience of the order of the Court. The judge found that the borrower had knowingly and intentionally defied the order of the Court to give the lender possession.

The judge committed the borrower to a sentence of imprisonment for three months and issued a warrant for his arrest.

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