CBA v Dabraio
[2013] VCC 428
•17 April 2013
| IN THE COUNTY COURT OF VICTORIA | Revised from tape recording of proceeding Not Restricted |
AT MELBOURNE
CIVIL DIVISION
COMMERCIAL LIST
BANKING & FINANCE DIVISION Case No. CI-11-03864
| COMMONWEALTH BANK OF AUSTRALIA | Plaintiffs |
| ABN 48 123 123 124 | |
| v | |
| PIETRO DABRAIO | Defendant |
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JUDGE: | Her Honour Judge Kennedy | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 April 2013 | |
DATE OF JUDGMENT: | 17 April 2013 | |
CASE MAY BE CITED AS: | CBA v Dabraio | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 428 | |
REASONS FOR RULING
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I. Hristovski (solicitor) | Gadens Lawyers |
| For the Defendant | Mrs V. Dabraio (in person) |
HER HONOUR:
Background
This is a return date of the defendant’s summons dated 19 February 2013 seeking the stay of the execution of a warrant.
The bank is represented by Mr Hristovski, and leave was given to Mrs Dabraio to represent the defendant, her husband.
background
The proceeding was issued in August 2011 wherein the plaintiff sought possession of the property known as 58 Dunbarton Drive, Pakenham, Victoria.
A default judgment was obtained on 21 September, 2011, following the striking out of the defendant's defence. That default judgment was for possession and a total amount of $161,055.42.
A warrant of possession was then issued on 1 November 2012.
It appears that an application to stay the warrant was made to his Honour Judge Allen who heard the matter on 17 January 2013 and granted a stay until 31 January 2013.
His Honour also ordered the defendant to file and serve a summons and affidavit in support by 25 January 2013.
No such affidavit was filed, and on 30 January 2013 his Honour Judge Anderson dealt with the matter and gave the defendant a further opportunity to negotiate and initiate discussions with the bank about reinstating the loan and paying the arrears. His Honour's orders appear to have been treated as a formal stay.
On 13 February 2013 the application for a stay was further adjourned to 20 February by consent.
10. On 19 February a summons and affidavit in support was filed by the defendant. That affidavit cited various matters in support of the application, including a request for an investigation by the Ombudsman; an opportunity for financial counselling; a suggestion that financial circumstances had improved; and that there was an ongoing wish to resolve the matter with the bank so that the defendant, his wife, and four children could remain at the family home.
11. On 20 February 2013 his Honour Judge Anderson then granted a further adjournment of the matter, and stayed the warrant until 20 March 2013. In those orders His Honour also made provision for the defendant to have financial counselling.
12. On 20 March 2013 the matter was further adjourned and the warrant stayed until today (by consent).
further evidence
13. On 16 April, an affidavit of Mr Brian Joseph Kennedy was filed, which affidavit has been shown to Mrs Dabraio this morning.
14. The affidavit recites a number of matters, including that financial counselling has been taken up (which Mrs Dabraio confirmed); that an offer had been made to the bank and rejected; and that the Ombudsman complaint had been dismissed.
15. Critically, however, that affidavit annexes a search which divulges that the defendant is an undischarged bankrupt.
16. It further appears that the joint trustees in bankruptcy are aware of this proceeding.
17. Thus, by correspondence of 25 March 2013 to the bank, the trustees indicated that they were prepared to proceed with the sale of the property, but also that if the bank wished to proceed to realise the property as mortgagee, then the bank should account to them for the surplus.
18. In more recent correspondence of 2 April 2013 to solicitors for the plaintiff, the trustees advise that the trustees have no interest in defending the proceeding against the bankrupt regarding the repossession of the property.
Principles
19. Pursuant to Rule 66.16, I have power to grant a stay.[1]
[1] Pursuant to County Court Civil Procedure Rules 2008
20. In Talston Pty Ltd v Daisley,[2] Justice Kaye states as follows (at[10]):
[2] [2004] VSC 23.
The authorities recognise that under that rule the Court has a wide discretion: see, for example, Joskovitz v. Bonnick (citations omitted). It is well recognised that the circumstances which relate to the issue of whether or not a stay should go must be matters relating to the enforcement of the order and must not be matters that go to the correctness of the order: see, for example State Bank v. Parry (citations omitted).
21. His Honour also states at [17]:
It is well established that prima facie a plaintiff who obtains successfully a judgment from this Court is entitled to enforce it. Otherwise the process of this Court would be irrelevant to the citizens of this State which came before it. The onus does lie on the defendant to satisfy the Court, by proper material, that the defendant ought to be granted the indulgence of the stay to enable her to satisfy the rights of the plaintiff without prejudice to the plaintiff and without undue delay.
Submissions of the defendant
22. Mrs Dabraio made some oral submissions. She became emotional at times, and it was a little unclear as to whether she was really prosecuting the application for a stay, in the light of her husband’s bankruptcy. However, I have treated her appearance as an application for a further stay.
23. Mrs Dabraio claimed that her husband and herself were not aware of the bankruptcy until recently when they saw the counsellor. She also said she was hopeful of having a meeting with the trustee on 24 April 2013.
24. She further cited a number of matters, including that her husband had secure employment; that the arrears had been paid in full by December 2011; and that the desire to make further payments had been complicated by the bankruptcy of her husband. She requested as much time as possible in the light of the fact that there are four children residing at the family home with herself and her husband; and that it was extremely difficult for them to obtain alternative accommodation.
25. She also opposed any application for costs being made on the basis that the bank has been aware of her husband's bankruptcy and should have brought that matter to the attention of the court so as to avoid the costs of earlier appearances.
Resolution of the application
26. One can have considerable sympathy for the situation of the defendant. However none of the matters raised warrant any further stay of execution of the judgment, particularly in circumstances where there has already been some considerable delay.
27. The bankruptcy in particular means that there is no utility in any further stay since the property must now be sold to satisfy the bankrupt’s creditors, including the bank.
28. I have, however, invited the bank to make enquiries as to whether or not some extra time can be given to enable a smooth departure from the property. I have been told that the Sheriff ordinarily takes some four to six weeks to actually execute upon the property, which provides a measure of comfort.
29. Accordingly, the order will be that the defendant summons dated 19 February 2013 must be dismissed.
30. In terms of costs, there was not sufficient time today to ascertain precisely whether or not the bank did or did not know of the bankruptcy of Mr Dabraio; nor for that matter has it been put on affidavit that the Dabraios did not know of it (as was alleged by Mrs Dabraio). In any event, any application for costs would appear to be prevented by the terms of s58(3) of the Bankruptcy Act 1966 (although again, neither party addressed the court on this matter).
31. In all the circumstances then, I will simply reserve costs and note that an application may be made on reasonable notice for costs if either party so wishes.
Conclusion
32. The orders of the court will be as follows:
a. The Defendant’s summons dated 19 February 2013 be dismissed.
- Costs reserved.
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