Bankwest v New South Wales Trustee and Guardian

[2015] NSWSC 1340

Supreme Court

New South Wales

Medium Neutral Citation:	Bankwest v New South Wales Trustee and Guardian [2015] NSWSC 1340
Hearing dates:	7 September 2015
Date of orders:	07 September 2015
Decision date:	07 September 2015
Jurisdiction:	Common Law
Before:	Wilson J
Decision:	1. Application is granted. 2. Writ of possession from 14 July 2015 is stayed up to and including 10am on 20 October 2015. 3. The court notes the consent orders of 25 June 2015 which provide that Iran Basrami has agreed and continues to agree to pay $1836.69 to the applicant on the 30th day of each month. 4. The Court directs the applicant to take all reasonable steps to obtain the administration of his late wife’s estate. 5. The Court orders that the application currently pending in this Court’s Probate List is treated with expediency due to the urgency of the accommodation of the deceased’s family. 6. A copy of the orders are to be provided immediately to the applicant.
Catchwords:	PROCEDURE – civil – application for an extension of a stay of a writ of possession – application of third party - hardship
Category:	Procedural and other rulings
Parties:	Bankwest (Plaintiff) New South Wales Trustee and Guardian (Defendant) Iran Bajrami (Third Defendant/ Applicant)
Representation:	Counsel: M Bechara (Third Defendant/ Applicant) K Fraser (Plaintiff)   Solicitors: Bechara & Company (Third Defendant/ Applicant) Kemp Strang (Plaintiff)
File Number(s):	2014/180918
Publication restriction:	None

EX TEMPORE Judgment

1. Before the Court by oral application referred from the Registrar's list of this morning is an application for an extension of a stay of a writ of possession. The application is made by Iran Bajrami who is currently the occupant of the premise at 3 Minnegang Street at Warrawang in this state.

2. Mr Bajrami was, up until her death, married to Mrs Nafije Bajrami. Mrs Bajrami was the registered proprietor of the property at which the applicant lives. Tragically she died from a severe illness on 3 August 2014. The applicant subsequently took steps to have probate entered but there have been some complications with respect to the deceased's estate. Whilst there is an application pending in the probate list of this Court that application has not yet been granted and the estate is currently in abeyance and not able to be administrated following Mrs Bajrami's death.

3. Some of the complicating factors are; there is no certificate of marriage relating to the marriage of the couple, the marriage took place overseas in Macedonia and to date no copy of the marriage certificate has been able to be located. Securing a copy of it has been made difficult because of the jurisdiction in which the marriage took place.

4. There is also a further complication in that Mrs Bajrami did not make or leave any will as far as has been able to be ascertained. At the time of her death Mrs Bajrami was indebted to Bankwest, a division of the Commonwealth Bank of Australia, that institution holding a mortgage over the property at which the applicant resides. After Mrs Bajrami's death her husband fell into arrears with payments of the mortgage due to Bankwest.

5. He had been unemployed during the last period of his wife's life because he was occupied as a carer for his wife who was extremely ill with a brain tumour. Subsequent to his wife's death the applicant has now sought and obtained employment and he has taken steps to secure alternative financing such that the debt to Bankwest could be discharged. The applicant seeks an extension of a stay which was originally granted by her Honour Justice McCallum sitting in the duty list on 26 August 2015. On that date her Honour stayed the writ which was due to be executed that morning at 9.30am.

6. In the judgment that her Honour then gave she was critical of the lateness of the application for a stay of the writ of execution and the unsatisfactory nature of the evidence put before the Court in support of it. It doesn't appear that the delay since 26 August 2015 has greatly advanced the situation that was faced by her Honour on that date.

7. This morning before the Court there is an affidavit of Mr Bajrami affirmed today, and the application for a stay of the writ is made orally, there being no notice of motion. Unlike the proceedings of 26 August 2015, however, there is at least no claim from Bankwest that they have been given insufficient notice of the application. Bankwest opposes the application. Ms Fraser who appears for the bank points out that subsequent orders referred to by her Honour in the judgment of 26 August 2015 were breached with the applicant failing to make repayments to the bank of $1,836.69 which falls due on the 30th day of each month. There were also failures in providing documentation to establish a loan approval obtained by the applicant.

8. Notwithstanding those difficulties the bank fairly concedes today that if there is a further stay of the writ of possession the bank will not be prejudiced as long as the applicant continues to make the repayments which fall due under the original loan agreement. Execution of the writ is not imminent and there is no overall prejudice to the bank in a short further delay.

9. In his affidavit the applicant deposes to the circumstances that have pertained in the last two or so weeks and the things that he has done in the attempt to keep up with the mortgage repayments, pursue the administration of his late wife's estate, and provide for the documentation which the bank seeks, including a certificate of marriage.

10. The applicant has obtained employment in the period since 26 August 2015 and had originally made an arrangement for his employer to make payments against the mortgage on his behalf, I infer as either whole or part payment of wages. There was some delay in those repayments being made but once the applicant became aware of that he caused his employer to make the repayments. Annexed to the affidavit filed in Court this morning from the applicant are bank receipts which indicate payment of the mortgage as due under the consent orders. Additionally, the applicant has taken steps to obtain a conditional approval from a financier and there is some evidence before the Court of conditional approval being granted by a finance organisation, Pepper Australia Pty Ltd.

11. Pepper Australia has granted a conditional approval to the applicant to advance loan moneys to the sum of $398,969 that being a little in excess of the amount due to Bankwest. The anticipated period of the loan is 30 years. The security would be the subject premise at Minnegang Street, Warrawong. The loan approval is subject to a number of conditions some of which, it is reasonable to infer, can be readily met whilst others may have some delay attached.

12. The applicant is required to provide identification to Pepper Australia, to provide letters of probate of his late wife's estate, to provide confirmation of the amount of money payable to Bankwest in relation to the property in Minnegang Street, together with a valuation of the relevant property. The applicant is required also to provide evidence of his capacity to repay the proposed loan amount in the form of personal bank statements from the past six months. He is also obliged to provide a tax assessment or group certificate in relation to salary.

13. To date probate has not been obtained and there will be some anticipated delay in that. It may be that the applicant will be obliged to negotiate some alternative proof of income, in that it would appear from the evidence, given the short period in which he has been employed that he would not be in a position to provide six months worth of personal bank statements concerning the capacity to repay. However, there is evidence before the Court from the applicant which was not sought to be tested by Bankwest that he is now and will in the future be able to repay loan amounts to Pepper Australia. On that basis he is confident that the conditional loan will be made to him.    

14. There is an issue of hardship in this case which certainly was a matter concerning her Honour in August and is a matter concerning the Court today. When Mrs Bajrami died on 3 August 2014 she left not just her husband but the young children of the couple. If the writ of execution is carried out the applicant will be made homeless but so too will his young children. In circumstances where there is some evidence upon which to conclude that he will shortly be in a position to secure the necessary finance to discharge the Bankwest loan, and obtain for himself and his three children security of accommodation, it is reasonable in my view to have regard to the hardship issue and the likelihood of Mr Bajrami being able to soon discharge the mortgage in determining the application for a stay.

15. It is significant in the determination of the application that the bank has candidly conceded that it will face no prejudice should there be a stay of execution of the writ of possession, again on the basis that the mortgage payments are maintained.

ORDERS

1. I grant the application.

2. I make an order that the writ of possession granted on 14 July 2015 be stayed up to and including 10am on 20 October 2015.

3. I note the consent orders entered on 25 June 2015 which provide that the applicant has agreed and continues to agree to make payments to the applicant in the sum of $1,836.69 on the 30th day of each month.

4. I direct the plaintiff to take all reasonable steps to obtain the administration of his late wife's estate.

5. Relevant to that I make an order that the application currently pending before this Court in its Probate List be treated with expedition because of the urgency of the situation of the accommodation of the deceased's family.

6. I direct that a copy of these orders can be taken out immediately.

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Decision last updated: 11 September 2015