Australian Securities Ltd v Zacharias & Anor

[2008] VSC 514

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
Commercial & Equity Division

PRACTICE COURT

No. 6534 of 2008

AUSTRALIAN SECURITIES LIMITED	Plaintiff
v
DIMITRIOS ZACHARIAS & MANUELA ZACHARIAS	Defendants

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JUDGE:	BYRNE J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 October 2008
DATE OF JUDGMENT:	20 October 2008
CASE MAY BE CITED AS:	Australian Securities Ltd v Zacharias
MEDIUM NEUTRAL CITATION:	[2008] VSC 514

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Practice and Procedure – order for possession – stay of execution – stay refused

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B. Lodding	Nicholas O’Donohue & Co
For the Secondnamed Defendant	Mr D. A. Klempfner	Alphastream Lawyers

HIS HONOUR:

1. This is an application made by the second named defendant, the wife of the first named defendant. The defendants have borrowed money from the plaintiff, Australian Securities Ltd.  They fell into arrears under the mortgage and Australian Securities Ltd has exercised its rights calling up the loan, given notices of possession and the like. 

1. A proceeding was issued in June seeking possession of the property.

1. The history of the proceeding shows that the defendants have taken no interest in the proceeding and indeed a substituted service order of the initiating process was required to be made.  What has now happened, it seems, is the defendants' relationship has terminated and Ms Zacharias, now Ms Ivanovski, has received a transfer of the property or his interest in it from her husband, so she is now entitled to be registered as the sole proprietor of the land.  The land is a substantial block of residential land on the outskirts of Melbourne.

1. The amount of the debt I was told was of the order of $1.3 million although I am now told that given interest and other charges it is more in the order of $1.5 million.  Mrs Ivanovski has produced a valuation of $3.5 million.  The valuation is challenged, at least as to this, figure by counsel for the plaintiff. 

1. Insofar as the legal position of the parties is concerned, the defendants, and in particular Ms Ivanovski, do not assert any impropriety in the obligation asserted by the plaintiff nor any reason, as a matter of law, why the plaintiff should not be paid.  Nothing was said against the formalities attending the order for possession.  The case is put, really, on the basis that she wants time to refinance the property and thereby to save the property as a home for herself and her children.

1. In all the circumstances of this case I think I ought not to grant the application.  Ms Ivanovski has had abundant time to set about obtaining finance.  The documentation before me suggests her efforts have been very much a last minute exercise and quite frankly I am not confident, from the material before me, that she would be successful.  In the circumstances the legal process must take its course, subject of course to any arrangement that might be made between Ms Ivanovski and the judgment creditor because ultimately at this stage, the matter is between them.

1. The court will not get involved.  I refuse to make the orders staying possession.  The application is refused. 

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