St George obtained judgment for possession in 2004. After several stays of the writ St George obtained possession in 2008. Sometime later the borrower re-entered possession. St George sought a writ of restitution and that the judgment be served with an endorsement stating that Udowenko was liable to imprisonment if possession was not handed over. The borrower resisted the application on the basis that they were entitled to trial by jury on both the primary claim for possession and this motion.
In relation to the writ of restitution the Court held:
The writ of restitution is a recognised procedure where, after entry by the Sheriff under a writ of possession, a defendant forcibly resumes possession of the subject land and the plaintiff seeks to have possession restored. It is a writ in aid of another writ of execution.
In relation to the trial by jury the Court held:
The obvious way in which the defendants will avoid what they are concerned about is to comply with the Court’s orders. That is a matter that rests in their hands.
Justice Schmidt therefore ordered that St George could serve the judgment with the endorsement because that would facility the just, quick and cheap resolution of the real issues between the parties in accordance with s56 Civil Procedure Act.