Bankwest v NSW Trustee and Guardian
[2016] NSWSC 43
•02 February 2016
Supreme Court
New South Wales
Medium Neutral Citation: Bankwest v NSW Trustee and Guardian [2016] NSWSC 43 Hearing dates: 2 February 2016 Date of orders: 02 February 2016 Decision date: 02 February 2016 Before: Garling J Decision: (1) Order that the writ of possession issued on 14 July 2015 be stayed up to and including 12 noon on Friday 5 February 2016;
(2) Order Mr Iran Bajrami to deliver up vacant possession of the property at 3 Minnegang Street, Warrawong, New South Wales 2502 to the Bank of Western Australia Limited (known as Bankwest) or its appointed agent or representative by no later than 10am on Monday 8 February 2015, such delivery up and vacant possession to include but not be limited to providing all keys in the possession of the applicant for the property to the appointed agent or representative of Bankwest;
(3) Order the applicant to pay the respondent's costs;
(4) Order that these orders be taken out forthwith.Catchwords: PROCEDURE – civil – application for stay of execution of writ of possession – whether in the interests of justice for stay to be granted Legislation Cited: Not Applicable Cases Cited: Not applicable Texts Cited: Not Applicable Category: Procedural and other rulings Parties: Bankwest (P)
NSW Trustee and Guardian (D)
Iran Bajrami (Applicant 1)Representation: Counsel:
Solicitors:
Mr Pong (P)
Submitting (D)
Ms M Bechara (Third Party)
Kemp Strang (P)
NSW Crown Solicitor (D)
Bechara & Co Solicitors (Third Party)
File Number(s): 2014/180918 Publication restriction: Not Applicable
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EX TEMPORE Judgment
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This is an application made orally for a stay of execution of a writ of possession with respect to a property at 3 Minnegang Street, Warrawong, New South Wales 2502. The applicant is Mr Iran Bajrami.
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Mr Bajrami is not presently registered as the proprietor of the property because it is in his late wife's name. However, Mr Bajrami is the recipient of a grant of Letters of Administration, which permit him to deal with and administer the estate of his late wife. I am informed there are no other assets in the estate of the late Mrs Bajrami except for the property in question. Under the relevant legislation, where intestacy occurs, the applicant, Mr Iran Bajrami, is entitled by transmission to the property.
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There is a mortgage over the property. It was and it remains in default. The Bank of Western Australia Limited (known as Bankwest) obtained a Writ of Possession on 14 July 2015, entitling it to possession of the property.
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On 26 August 2015, this Court granted a stay of the Writ of Possession up to and including 7 September 2015. On 7 September 2015, this Court granted a further stay until 20 October 2015 on the execution of the Writ.
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By the consent of the parties, on 23 October 2015 the execution of the Writ of Possession was stayed up to and including 13 November 2015. The Court has no record of any further stay being sought from the Court or granted by it. An urgent oral application is being made this morning by the solicitor for Mr Bajrami because the sheriff is due to execute the Writ at 11.30am today.
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In support of the application for a stay, I have been provided with a range of documents both by the applicant and by the Bank. Those documents indicate that a final approval has been granted by Pepper Home Loans for an advance to the applicant, secured by a first mortgage over the property. A further email dated 1 February 2016, from Pepper Home Loans confirms that settlement of the loan will occur on Thursday 4 February 2016.
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There appears to be a shortfall of about $20,000 between the amount granted for the loan and the sum needed to pay out the Bankwest loan.
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The solicitor for the applicant, from the bar table, has informed the Court that the applicant has the necessary funds to enable the settlement to be completed on 4 February and, at that time, to pay the entirety of the outstanding debt to the Bank.
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The applicant, his three children and his aged parents presently live in the property. The applicant has lived there since 1994. They have no other home and, for whatever reason, the reality of their life is that they have made no arrangements to live elsewhere. It must be said that the applicant has not attended to his legal obligations with any degree of satisfactory diligence.
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However, the question of a grant of a further stay is entirely a matter in the Court's discretion. On the one hand, the Court is faced with allowing the Writ to proceed, leaving the applicant, his three children and parents without anywhere to live, or, on the other hand, deferring the execution of the Writ for a very short period of time to enable what appears to be a firm arrangement to take place.
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In my view, it is in the interests of justice to give the applicant one last chance to re-order his affairs and complete settlement of this property on Thursday 4 February 2016. However, I propose to make orders which ensure that if the applicant has not complied with his obligations, the Bank will be entitled to possession of the property by an order of this Court made against Mr Bajrami, requiring him to deliver up possession on Monday 8 February 2016.
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I make the following orders:
Order that the Writ of Possession issued on 14 July 2015 be stayed up to and including 12 noon on Friday 5 February 2016;
Order Mr Iran Bajrami to deliver up vacant possession of the property at 3 Minnegang Street, Warrawong, New South Wales 2502 to the Bank of Western Australia Limited (known as Bankwest) or its appointed agent or representative by no later than 10am on Monday 8 February 2015, such delivery up and vacant possession to include, but not be limited to, providing all keys in the possession of the applicant for the property to the appointed agent or representative of Bankwest;
Order the applicant to pay the respondent's costs;
Order that these orders be taken out forthwith.
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Decision last updated: 10 February 2016
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