Bankwest, a Division of Commonwealth Bank of Australia v New South Wales Trustee and Guardian

[2015] NSWSC 1289

Supreme Court

New South Wales

Medium Neutral Citation:	Bankwest, a Division of Commonwealth Bank of Australia v New South Wales Trustee and Guardian [2015] NSWSC 1289
Hearing dates:	26 August 2015
Date of orders:	26 August 2015
Decision date:	26 August 2015
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Writ of possession granted on 14 July 2015 stayed up to and including 7 September 2015
Catchwords:	CIVIL – procedure – possession – application for stay of writ of possession
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 7.10
Cases Cited:	GE Personal Finance Pty Limited v Smith [2006] NSWSC 889; NSW ConvR 56-164
Category:	Procedural and other rulings
Parties:	Bankwest, a Division of Commonwealth Bank of Australia (plaintiff) New South Wales Trustee and Guardian (defendant) Iran Bajrami (applicant)
Representation:	Solicitors: Bechara & Company (applicant) Ex parte
File Number(s):	2014/180918
Publication restriction:	None

Judgment – Ex tempore

1. HER HONOUR: Before the Court is an application for the stay of a writ of possession issued in these proceedings on 14 July 2015. The proceedings were commenced by Bankwest, a division of Commonwealth Bank of Australia, by statement of claim filed 18 June 2014 against the registered proprietor of the property in question, Ms Nafije Bajrami. However, the statement of claim was never served on Ms Bajrami. She died on 3 August 2014.

2. In December 2014, the plaintiff undertook a probate search and found no application in respect of the deceased's estate. Accordingly, on 5 February 2015, on the application of the plaintiff, the NSW Trustee and Guardian was substituted as defendant to the proceedings. Continuation of the proceedings ought to have been the subject of leave in those circumstances pursuant to r 7.10 of the Uniform Civil Procedure Rules 2005 (NSW). However, default judgment was in fact entered without such leave on 19 May 2015. In the meantime, the present applicant, the husband of Nafije Bajrami, has made an application for letters of administration, there having been evidently no will left by the deceased (who died at the age of 41).

3. The husband, to whom I will refer as the applicant, brought an application to have the irregularly entered default judgment set aside and related relief. That application was determined by a registrar, ultimately being resolved by consent. The consent orders, entered on 25 June 2015, provided that the applicant agreed that the plaintiff was at liberty to enforce the judgment. The plaintiff undertook not to enforce the judgment before 4 August 2015 on the following conditions:

1. That the applicant makes payments to the plaintiff of $1,836.69 on the 30th day of each month; and

2. That the applicant provides the plaintiff a copy of the preliminary loan approval granted to the estate by 5pm on 29 June 2015.

4. Ms Bechara, the solicitor for the applicant, has informed the Court today that it is her understanding that the second condition is wrongly recorded and that the applicant was in fact required to provide evidence of an unconditional loan approval by that date. The applicant does not yet have an unconditional loan approval because the incoming lender requires proof of his marriage to the deceased to sustain the contention that he will, in all likelihood, become the registered proprietor of the property upon the determination of the application for letters of administration. The applicant anticipates that he will receive proof of the marriage within the next few days and accordingly, sought a stay only up to 1 September 2015. Accordingly, the basis for the application today is that the applicant has a strong anticipation of having unconditional approval for a loan which will enable him to repay the whole of the debt to the plaintiff within the relatively near future.

5. Separately, it is clear enough from the material relied upon that a cogent application might have been brought on the grounds of hardship. The applicant, as already noted, is the widower of the late Ms Bajrami. They have, according to the death certificate, three children of relatively young age. However, as the application was brought before me, there was not any direct evidence directed to an application on that basis.

6. The circumstances in which the application was brought before this Court are entirely unsatisfactory. The Court first received notice of the application shortly before 8pm last night, the writ being due to be executed at 9.30 this morning. I began sitting at 8am and it is now 9:05am.

7. The agent of the solicitor for the applicant has just been dispatched from the Court with a copy of the sealed order for him to fax to the Sheriff, but the pressure under which the Court has been put in determining an application brought with such unsatisfactory material and at such a late hour is not acceptable. However, it is clear enough that it would not be appropriate to visit the consequences of those events on the applicant himself. The application does seem to me to fall readily enough within the principles stated by Johnson J in GE Personal Finance Pty Limited v Smith [2006] NSWSC 889; NSW ConvR 56-164; there being at least some evidence of loan approval having been granted subject to an unusual condition which is expected to be satisfied within the near future.

8. A separate aspect of the unsatisfactory nature of the present application is that the plaintiff was not put on notice of it. I have, in the circumstances, been forced to accept at face value what has been said to me by Ms Bechara by telephone, which is that she was instructed Mr Bajrami has made the payments referred to in the first condition of order 4 made 25 June 2015. It should go without saying that, if that is not the case, the stay should be revoked (subject to any factors which might persuade the judge who would determine any such application otherwise). In all the circumstances, I am satisfied that it is appropriate to grant a stay for a short period notwithstanding the unsatisfactory matters to which I have referred.

9. For those reasons, I have made the order that the writ of possession granted on 14 July 2015 be stayed up to and including 7 September 2015. I have chosen that date beyond the date of the stay sought so that the matter can be brought before the Duty Judge on a Monday, in accordance with the usual practice in the Duty List.

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