Awad v Awad

[2016] NSWSC 1915

Supreme Court

New South Wales

Medium Neutral Citation:	Awad v Awad [2016] NSWSC 1915
Hearing dates:	30 December 2016
Date of orders:	30 December 2016
Decision date:	30 December 2016
Before:	Garling J
Decision:	(1)   The Notice of Motion filed 28 December 2016, with the exception of order 5, is dismissed; (2)   Stand over order 5 of the notice of motion filed on 28 December 2016 for hearing before the Duty Judge on 9 February 2017; (3)   Stand the motion over for directions on that day before the Registrar at 9am; (4)   Order that the Writ of Possession issued on 6 December 2016 be not executed before midnight on 27 January 2017. (5)   Defendants, who are the applicants on Motion, should pay the plaintiffs who are the respondent to the Motion's costs of the Notice of Motion
Catchwords:	Not Applicable
Legislation Cited:	Uniform Civil Procedure Rules 2005
Cases Cited:	Not Applicable
Texts Cited:	Not Applicable
Category:	Costs
Parties:	Nouhad Awad by her tutor Zouha Habib (Plaintiff/Respondent) Michael Awad (Defendant/Applicant)
Representation:	Counsel: M Rumore (Plaintiff/Respondent) P R Glissan (Defendant/Applicant)   Solicitors: Colin Biggers & Paisley (Plaintiff/Respondent) Ivy Law Group (Defendant/Applicant)
File Number(s):	2016/278389
Publication restriction:	Not Applicable

EX TEMPORE Judgment

1. This is an application, made urgently, for a stay, until further order, of a judgment for possession made and entered on 18 November 2016 by Adams J, and of a writ of possession which falls due for execution on 13 January 2017.

Mr Awad’s Application – Reasonable Prospects of Success on Appeal

2. There are two applicants. The male applicant, Mr Michael Awad, seeks the stay on the basis that he has filed a notice of appeal against the decision of Adams J. A copy of that notice of appeal has been provided. It has a single ground, which is that Mr Michael Awad was denied procedural fairness by Adams J on 18 November 2016 in circumstances where it is said Mr Awad had a reasonably arguable defence and was not able to put that defence in circumstances where, through no fault of his own, he was unrepresented.

3. To the extent it is possible to discern what that defence may have been, it seems to be that Mr Awad would wish to have argued that by reason of a conversation which occurred in 1994 and subsequent conduct by him, making payments either to or on behalf of his parents and making payments for the renovation of the house which is at the centre of this dispute, his mother, the plaintiff, would be estopped from denying that he is entitled to possession of the property.

4. It is apparent from argument today by Mr Glissan of counsel, that Mr Awad does not advance an entitlement to remain in the property based upon some written legal agreement such as a lease or a licence or a tenancy agreement, but rather asserts what his counsel described as an equitable estoppel entitling him to remain in the premises.

5. I have carefully read both the transcript of argument on 17 and 18 November 2016 before Adams J, and also the extensive affidavit of Mr Awad of 28 December 2016 and the various annexures. I am unconvinced that the notice of appeal in its present form is reasonably arguable, and I am unconvinced that it has sufficient prospects of success to warrant a grant of a stay.

Mrs Arzi Awad’s Application – Reasonable Prospects of Success on Appeal

6. Mrs Arzi Awad has not filed an appeal. She joins in as an applicant to the current notice of motion on the basis that judgment for possession against her was rendered irregularly within the meaning of r 36.15 of the Uniform Civil Procedure Rules 2005 (“UCPR”). That irregularity is said to be that there was no evidence put before the court that Mrs Awad had been served with the Amended Statement of Claim which was the pleading upon which judgment was being sought in circumstances where no defence had been filed to it.

7. So far as is able to be discerned from the court record, there was no evidence before Adams J of service of the Amended Statement of Claim on Mrs Arzi Awad personally, although there was evidence of service on Mr Michael Awad. However, that argument as to the existence of an irregularity is to be balanced with the fact that Mrs Arzi Awad's right to possession - an expression I use generally - is entirely dependent upon that of her husband, Mr Michael Awad. It is not suggested that, and the evidence does not support, there is any independent entitlement for her lawfully to reside at the property. Also, it is contended from the Bar table, and may ultimately be proved, that she was present in court during the proceedings on 17 and 18 November 2016. A solicitor, Mr Jones, appeared in court on the first of those days. Whether he was appearing for both defendants or only for Mr Michael Awad is not abundantly clear from the court record.

8. These are things which may stand against Mrs Awad's contention that the judgment was entered irregularly. She provides no evidence to me today that she has any defence to the possession proceedings, save and except as is readily apparent, she relies upon her husband's claim to have the right to reside in the property.

9. I am prepared to accept that in the terms required at this stage in the interlocutory stay proceedings that Mrs Awad has disclosed that she has an arguable case for claiming that the judgment was irregular. Whether ultimately she would be successful in resisting the entry of judgment is a matter upon which I make no comment.

Balance of Convenience

10. It is necessary to consider the balance of convenience. The plaintiff owns this home. She has lived in it for a very long time, first with her husband and various members of her family and then, after her husband's death, by herself with various members of the family. She is elderly, and suffers from dementia. She is presently being cared for by her daughter, who is her tutor in the proceedings. They reside at her daughter's home in Werrington, which is a significant distance from the plaintiff's own home.

11. The plaintiff has expressed the desire, which is entirely understandable, that she wishes to return to her home, a place where she has lived for a very long time, in which she has been comfortable and with which she is entirely familiar. Even taking the case of Mr and Mrs Awad at its highest, they do not suggest that such entitlement as they have to reside in the property is one which excludes the residence of the plaintiff in that property.

12. The plaintiff has not lived in the property since August 2015. Initially she moved to her daughter's house in circumstances which are disputed and which I do not determine. But within a relatively short time thereafter, the defendants accept that they changed, or caused to be changed, the locks of the house and the plaintiff has been excluded from, or at the least unable to, access the house since that time. An unconvincing attempt is made to justify the need to exclude the plaintiff.

13. All of that, in combination, points to a very good reason why the plaintiff should be allowed to return to her home and live there. In order to do so, she would need to have a carer. At present that is her daughter, and it is not proposed any change to that arrangement would occur.

14. The number of years of future life of the plaintiff is limited, and there is a very strong reason why she should be able to return and live in her house for the balance of her life so long as her health permits her so to do.

15. Mr and Mrs Awad are the parents of a young child. Mr Awad tells the court he is a disability pensioner, who is in receipt of limited income and a person of limited assets. His principal asset seems to be his claim that he is entitled to one-half of the capital value of the house at Bexley, the subject of these proceedings.

16. Mr Awad is not particularly well. He has a number of ailments. It is unnecessary to describe them all. They have all been carefully considered.

17. Mr Awad has applied for and has been approved for placement on the list of social housing. That application was made, it must be said, very late in the piece and seeks housing close to hospital and medical facilities. There is no evidence before the court that in addition to seeking out public housing, Mr Awad has taken any steps to obtain any housing at all. There is no evidence that housing is not available reasonably, or readily available in an area with access to hospital and medical facilities. There is no evidence that it would be particularly difficult to find alternative accommodation; nor is there any evidence as to how long it would be before social housing would be allocated to him. The evidence is that he is not on a priority list for housing. There is no reason why that circumstance cannot be reviewed if other circumstances change.

18. The balance of convenience also requires me to take account of whether, if Mr Awad or Mrs Awad were successful in either of their proceedings, they would not be able to be restored to the current position in which they are. This is not such a case. If Mr or Mrs Awad are successful in their proceedings and a court adjudges them entitled to live in the property, so far as things presently stand there is no reason why that entitlement could not be restored to them. There is no suggestion that the property is to be sold. On the contrary, the evidence before me is the plaintiff wishes to live in the property until she dies.

19. Determining where the balance of convenience lies is an evaluative exercise which requires me to take into account all of the relevant matters, and weigh them up and come to a conclusion. There is no doubt that the disabled state of Mr Awad weighs in his favour. Equally, the plaintiff's desire, as I have said, to live in her own home which she has owned for a very long time and to which she has been prevented from obtaining access by the changing of the locks, is also a very relevant matter.

Determination

20. In all of the circumstances, I have not been persuaded by the applicants on this motion that the balance of convenience favours the grant of a stay. For all of those reasons, I am not prepared to grant the stay sought in the notice of motion. However, it is always open to any applicant, in circumstances where a Writ of Execution has been issued and served, to apply to the court on the basis of hardship and existing circumstances for an extension of the Writ. I am prepared, in the circumstances here, to grant an extension before which execution cannot occur. In my view, an adequate period is 28 days. Accordingly, I will not make any order affecting the grant of judgment for possession, but I will grant a stay of the Writ of Execution so that it is not executed prior to 27 January 2017.

Orders

21. In the circumstances, there will be a need to stand over order 5 of the notice of motion to sometime in the New Year. I will make the following orders:

1. The Notice of Motion filed 28 December 2016, with the exception of order 5, is dismissed;

2. Stand over order 5 of the notice of motion filed on 28 December 2016 for hearing before the Duty Judge on 9 February 2017;

3. Stand the motion over for directions on that day before the Registrar at 9am;

4. Order that the Writ of Possession issued on 6 December 2016 be not executed before midnight on 27 January 2017.

Costs

22. Application is made for costs by the plaintiff respondent of the Notice of Motion. That application is resisted. It is submitted by the applicants that costs should abide the outcome of the various future proceedings.

23. Rule 42.1 of the Uniform Civil Procedure Rules provides that:

“Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.”

24. The applicants have been largely – but not entirely - unsuccessful on the Motion which they have brought. I do not regard the order which they have obtained for a stay for a period of 28 days as indicating any measure of success in light of the issues which were agitated. It follows that I am satisfied the plaintiff has had substantial success in resisting the Notice of Motion. I do not think that the costs of this interlocutory application should abide by the future determination of any proceedings. It follows, by application of r 42.1 and in my general discretion, that the defendants, who are the applicants on Motion, should pay the plaintiffs who are the respondent to the Motion's costs of the Notice of Motion.

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Decision last updated: 01 February 2017