AMP Banking Limited v Naidu

[2015] NSWSC 1169

Supreme Court

New South Wales

Medium Neutral Citation:	AMP Banking Limited v Naidu [2015] NSWSC 1169
Hearing dates:	12 August 2015
Decision date:	12 August 2015
Jurisdiction:	Common Law
Before:	Button J
Decision:	(1) The Notice of Motion of Ms Naidu filed in Court today is dismissed.
Catchwords:	REAL PROPERTY – application to stay execution of writ of possession – execution of writ stayed on previous occasions – no possibility of refinance – application refused   EVIDENCE – whether documents tendered by defendant in Court were created dishonestly – whether defendant has attempted to pervert the course of justice – matter referred to authorities for proper consideration
Category:	Procedural and other rulings
Parties:	AMP Banking Limited (Plaintiff) Malini Patel Naidu (Defendant)
Representation:	Counsel:   Solicitors: HWL Ebsworth Lawyers (Plaintiff) In person (Defendant)
File Number(s):	2011/210121

ex tempore Judgment

Background

1. This matter came before me in the Duty List this afternoon, when Mr Naidu, the defendant, appeared unrepresented. Arrangements had been made to contact the solicitors for the plaintiff bank, and they appeared at very short notice.

2. The dispute is about whether or not a writ for possession should be executed tomorrow morning on the home of Ms Naidu, which is an apartment located at Mt Druitt.

3. This matter has a long history. The bank first complained of default as long ago as February 2011, although it seems that it was in the relatively small sum of approximately $7,000.

4. On 27 June 2011, a statement of claim was filed seeking possession only. An affidavit of service shows that it was served on 7 July 2011.

5. By way of a notice of motion of 25 November 2011, the bank sought default judgment. That judgment was entered on 6 December 2011.

6. On 27 January 2012, a writ of possession issued directed towards an eviction on 16 March 2012. In the meantime, the position of Ms Naidu is that she won approximately $25,000 through a "scratchie", and was able to pay off her arrears.

7. As at 7 November 2013, it was said by the bank that the arrears would be the relatively small sum of approximately $4,600 on 15 November 2013.

8. On 14 May 2015, a further writ of possession issued. It was directed towards an eviction on 9 July 2015.

9. On that date, Ms Naidu filed a notice of motion and handwritten affidavit, the latter document referring to approximately $20,000 coming imminently from Canada. She obtained a stay of one week, seemingly ex parte from a Deputy Registrar of this Court.

10. On the day that stay expired, 16 July 2015, handwritten consent orders were filed, whereby the bank agreed that there should be no eviction before 30 July 2015. The defendant agreed that she would not seek any further stays, but I interpolate to say that I put that to one side, because I do not consider that litigants, especially unrepresented litigants, can bind themselves in that way as against all future eventualities.

11. Ms Naidu also agreed, by way of the filed consent orders, that she would pay the full amount owing by 30 July 2015.

12. That sum was not paid by that date. Indeed, I am told by the solicitor for the bank that no payments have been made for quite some time. Although the arrears as at today are not very substantial - I was told they are something less than $25,000 - the bank has called up the entire debt, which is over $315,000.

Submissions

13. The solicitor for the bank was not in a position to provide a valuation of its security. Ms Naidu told me from the Bar table that the apartment is worth at least $340,000, and is not otherwise encumbered.

14. The application of Ms Naidu has two bases. The first was hardship to herself and her family, including a disabled mother and a drug-dependent brother, all of whom live at the home.

15. The second basis was that refinance is imminent, because Ms Naidu has very recently sold two properties in Fiji. Her position was that some sort of mix up had occurred, and that funds she had expected had not yet arrived, but they will be available in a few weeks.

Determination

16. It is convenient to deal with the second basis first.

17. In support of the contention about imminent funds, Ms Naidu tendered three exhibits in her case. The first was said to be a deposit slip. The second was said to be a document that had been sent to her by a bank in Fiji. Another, defendant’s exhibit 3, was said to be a document sent to her by a lawyer acting on behalf of the depositor of the funds.

18. To be clear, her considered position is that those three documents emanate from two different bodies: exhibit 1 being a deposit slip; exhibit 2 being a certificate from the relevant bank; and exhibit 3 being a letter from the lawyer of the depositor.

19. What is immediately noteworthy is that all documents feature grammatical, punctuation and spelling errors; indeed, exhibits 2 and 3 are riddled with them.

20. Even more concerning is the fact that the identical unusual punctuation error of a capital letter following a comma within a sentence occurs in exhibit 2 twice, and in exhibit 3 twice. That is so even though, as I have said, the firm position of Ms Naidu is that they have come to her from entirely separate sources.

21. To complete the picture, it is clear from the documents of Ms Naidu herself that her grammar and punctuation is by no means perfect.

22. Making due allowances for the possibility that in another culture less emphasis is, perhaps, placed upon matters such as grammar and punctuation, I consider that I am entitled to take judicial notice of the fact that Fiji is an English-speaking nation.

23. I do not accept that exhibit 2, or anything like it, would emanate from a bank in Fiji as a formal document.

24. I also do not accept that a document such as exhibit 3 could have come from a solicitor or barrister admitted to practice in that nation.

25. Of most significance is the fact that, as I have said, the identical unusual punctuation error occurs in both exhibit 2 and exhibit 3.

26. During submissions, I made my concerns perfectly clear to Ms Naidu; indeed, I made perfectly clear my concern that in truth the documents had been created by her in an attempt to forestall execution of the writ, and dishonestly tendered in Court. She firmly denied that proposition, but was unable to give any coherent explanation for the aspects of the documents to which I have referred.

27. The solicitor for the bank submitted that, in short, I could not be satisfied on the evidence placed before me that there is any refinance in place. I accept that submission. Indeed, I go further: at the least, I suspect that Ms Naidu has tendered false documents intentionally.

28. I say that fully appreciating the gravity of that finding of fact.

29. That finding of fact leads me to give no weight to the second basis for a stay.

30. That finding of fact also leaves me to accord little or no credibility to what Ms Naidu has said, both orally and in writing, about hardship, although I accept that execution of the warrant tomorrow will, in a general sense, occasion hardship to her and perhaps others.

31. It is true that it is to be regretted that a mortgage is to be enforced, and persons evicted, when the arrears are in a relatively small sum. But in light of my factual finding about the documents tendered by Ms Naidu (even leaving aside the lengthy history of the matter; the fact that writs for possession have been stayed before; and the explicit consent orders of 16 July 2015), I do not propose to stay the execution of the warrant tomorrow morning.

32. The solicitor for the bank did not seek costs of today if successful in resisting the motion, on the basis that his client is protected by its security.

33. I make the following order:

1. The Notice of Motion of Ms Naidu filed in Court today is dismissed.

[Further submissions recorded in the transcript.]

34. Because of my concerns about the evidence that was placed before me, I propose in due course to refer a copy of this judgment, a transcript of the proceedings, the exhibits tendered, and a copy of the other documents that I informed the parties I had informally read, and with which they were content, to the proper authorities for consideration of whether or not Ms Naidu has committed a criminal offence; in particular, attempting to pervert the course of justice.

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Decision last updated: 25 August 2015