Capital Securities No 1 Pty Ltd v Saliba
[2014] NSWSC 1121
•13 August 2014
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Capital Securities No 1 Pty Ltd v Saliba [2014] NSWSC 1121 Hearing dates: 13 August 2014 Decision date: 13 August 2014 Before: McCallum J Decision: The execution of any writ of possession for the property at 15 Edward Street, Concord is stayed until 5 pm on Monday 10 September 2014.
Catchwords: POSSESSION - application for a stay Category: Interlocutory applications Parties: Capital Securities No 1 Pty Ltd
Roger Saliba (defendant)Representation: Counsel:
M Worth (solicitor for the plaintiff)
A Rogers (defendant)
Solicitors:
Kemp Strang (plaintiff)
Mitry Lawyeres (defendant)
File Number(s): 2014/130581 Publication restriction: None
Judgment
HER HONOUR: These are proceedings for possession commenced by Capital Securities No 1 Pty Limited against Mr Roger Saliba in respect of a property at Concord.
The proceedings were not defended within the time allowed under the rules and it appears judgment was entered by default in favour of the plaintiff on 6 June 2014. An eviction was scheduled for today but a stay of that eviction was granted last Friday by the registrar for a period of seven days.
The application before the Court today brought by an amended notice of motion filed in Court is for a further stay of the writ of possession until 10 September 2014. The amended notice of motion also seeks an order that the judgment be set aside but Mr Rogers, who appears for the defendant, does not move on that prayer for relief today. Rather he submits that on the strength of the evidence read today the Court would be satisfied that there is at least sufficient uncertainty attending the plaintiff's entitlement to possession to warrant granting a period of time within which his client may put on evidence going to the application to set aside the default judgment and allowing the plaintiff further time to consider that evidence.
At present, on the strength of two affidavits sworn by Mr Saliba, it is probably not unfair to say that more is unknown than is known. In summary, Mr Saliba's affidavits establish that, at the request of a cousin, he advanced funds to pay debts owed by his cousin's wife and in due course entered into the loan agreement the subject of the current proceedings. The defendant does not at this point have executed copies of the loan agreements that he signed and that is one of the difficulties faced by Mr Rogers and one of the grounds on which he seeks further time today.
It appears that, at the time Mr Saliba first made payment for the benefit of his cousin's wife, that was before any involvement of the plaintiff and was negotiated entirely between the defendant and his cousin.
At some point, the defendant began to deal with a different member of the same family and in those circumstances it appears he executed the loan agreement and mortgage with the plaintiff. It is not possible to discern from the evidence before me whether there is any basis for apprehending that the plaintiff would be on notice of any unfairness in the circumstances in which those documents were executed. In fairness to Mr Rogers, I do not think he contends necessarily that that is the case.
Separately, Mr Rogers relies on the fact that, from the documents his client has been able to obtain, a loan entered into in August 2013 in the sum of $177,000 has now been added to by approximately $134,000 in the short period since that date, an increment of more than 80 per cent.
Mr Rogers submitted that it can be inferred that there is an effective interest rate or combination of interest and fees which is exorbitant such that the Court could apprehend that the contract is presumptively unjust and that that on its own is enough to warrant at least allowing the defendant further time to investigate the circumstances in which the loan was entered into and to put on all material such as to warrant having the default judgment set aside.
Separately, Mr Rogers noted that there has been a suggestion that the cousin for whose benefit most of the borrowed funds were advanced may refinance the loan so as to relieve the hardship to Mr Saliba.
Mr Wirth, who appears for the plaintiff, came to Court today armed to meet what he thought would be an application for a stay on the grounds of the proposed refinance, something of which his client is aware. He was not aware that he would be expected to face an application in respect of the default judgment obtained against the defendant. Mr Wirth has, however, very fairly acknowledged that, a stay having been granted last Friday ex parte for a period of seven days, the scheduled execution of the writ of possession has been cancelled.
Mr Wirth informed me that ordinarily a period of approximately four weeks is allowed for the scheduling of a further stay. Mr Wirth is instructed to oppose any further stay today but I think very fairly accepted that there is a practicality in the circumstances I have just recited which could fairly operate in favour of the defendant.
In any event, but perhaps fortified by that fair concession, I think Mr Rogers' argument about the presumptive unfairness based on the figures alone is sufficient warrant to grant a further stay of four weeks as sought today. I would note that the evidence suggests that Mr Saliba may have received the benefit of approximately $10,000 of the sum advanced and it may be that the judge before whom the application is next returnable will have to consider the significance of that.
For those reasons, I order that the execution of any writ of possession for the property at 15 Edward Street, Concord be stayed until 5 pm on Monday 10 September 2014. I direct the defendant to serve any further affidavits upon which he proposes to rely in support of prayer two in the amended notice of motion by 5pm on Monday, 3 September 2014. I note that that direction is made on the assumption that Mr Rogers' optimism that he will be able to obtain the necessary transaction documents in the meantime is borne out and on that basis I grant liberty to the parties to apply on forty eight hours notice in the event that any further relief is sought in that respect.
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Amendments
10 November 2014 - Names of solicitors left out
Amended paragraphs: Coversheet
Decision last updated: 10 November 2014
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