Christopher John Palmer v Millica Paula Talijancich

[2018] NSWSC 1148

Supreme Court

New South Wales

Medium Neutral Citation:	Christopher John Palmer v Millica Paula Talijancich [2018] NSWSC 1148
Hearing dates:	23 July 2018
Decision date:	23 July 2018
Jurisdiction:	Common Law
Before:	Button J
Decision:	(1) The application for stay of the writ under discussion is refused.
Catchwords:	REAL PROPERTY – possession of land – application to stay execution of writ for possession – stay refused
Category:	Procedural and other rulings
Parties:	Christopher John Palmer (Plaintiff) Millica Paula Talijancich (First defendant) St George Bank (Second defendant) Pleiades Group Pty Ltd (Third defendant) Streeterlaw Pty Ltd (Fourth defendant) Jeddah Pty Ltd t/as Pure Legal (Fifth defendant) Christopher David Langford (Sixth defendant)
Representation:	Counsel: J Knackstredt (Plaintiff)   Solicitors: Macpherson & Kelly Lawyers (Plaintiff)
File Number(s):	2018/164405
Publication restriction:	Nil.

ex tempore Judgment - revised

1. This matter came before me as Duty Judge shortly after court hours concluded today, 23 July 2018. Expanding my understanding of the matter at very short notice took some time, and I am now delivering this judgment at 7.15 pm. That regrettable outcome is nevertheless imperative, because what is sought by Ms Talijancich, the applicant, is a stay of a writ for possession of valuable residential premises at Vaucluse that is set to be enforced at 10.30 tomorrow morning.

2. As is the essential practice in matters of this kind, the parties were content for me to proceed informally, not only by understanding the matter as best I could by reading the court file, but also by receiving information from the Bar table, and by not insisting on the usual formalities in regards to receipt of evidence. The result of that is that there is much that I am unable to determine conclusively.

3. My understanding of the background thus derived is as follows.

4. The applicant is the sole registered proprietor of the property in question, although her position, and I infer that of her husband (whom she was permitted to consult at length during the application), is that he has an equitable interest in the property. Regrettably, she has been in financial difficulties for well over a year, evidenced by her entering into a Personal Insolvency Agreement (PIA) appointing a trustee, and thereby entering into a form of insolvency. That in turn arose originally, it seems, from the enforcement of a debt against her, by way of threat of bankruptcy proceedings, with regard to a significant sum that she had been lent by a third party at an extremely high rate of interest. How all of that came to be necessary is not entirely clear to me.

5. From the time of the entry into the PIA, I believe that it was clear to all concerned that the property at Vaucluse must be sold, and sooner rather than later.

6. Indeed, it was sold, at a public auction on 26 February 2018. The position of the applicant, and her husband, is that a much better price could have been obtained in different circumstances. Her contention is also that the trustee has behaved, at the least, in a way disadvantageous to her and her husband’s financial interests.

7. It is impossible for me now to adjudicate the rights and wrongs of the relationship over the past year or so between the applicant and her trustee (the respondent to the application), but I accept, in the trying circumstances, that it has been difficult for all concerned.

8. The simple fact is, however, that the contract of 26 February had a date for completion of 60 days thereafter. From that time, the applicant and her husband must have known that there was, at the least, a distinct probability that the purchaser would demand vacant possession on that later date.

9. In fact, that completion date has come and gone. Understandably, the purchaser seeks completion. So, as I understand it, do the creditors who have lodged caveats on the property, and so, of course, does the trustee.

10. The applicant has told me that, based upon something she was told by the solicitor for the trustee, she assumed that the contract for the sale of land had simply, as it were, disappeared. I think that there may well have been a natural wishful thinking on her part, but I am unable to accept that she came reasonably to think that all that had occurred earlier this year, with regard to that most valuable asset, had been set at naught.

11. Quite some weeks ago, in late May 2018, proceedings brought by the respondent came before Darke J, at which the applicant did not appear and was not represented. His Honour granted the writ sought by the trustee, but made it a condition that it not be executed for a time.

12. The position of the applicant is that, due to a failure with regard to her email, combined with the form of substituted service permitted by his Honour, she was simply unaware that matters were speedily coming to a head. It was only last Thursday, she asserts, that she became aware of the imminence of the writ.

13. Even accepting that proposition, for the sake of argument only, the fact is that on her case the applicant has known of the deadline of 10.30 am tomorrow for a period of four days. Regrettably, as I have said, the matter was placed before the Court that issued the writ well less than 24 hours before it was to be executed.

14. The applicant has spoken of the hardship that will be occasioned to her if she is called upon to vacate the premises tomorrow morning, and when I commenced the matter I immediately indicated to her contingently that she should commence to make arrangements, as against the possibility that the application could fail.

15. The position of the applicant is that she should be granted a possibly extensive stay, so that she can obtain legal advice about the events of earlier this year. She is content for the current contract to lapse, and to let fault in that regard to be determined in due course. Her proposal is that the whole process of sale is to simply start again.

16. I accept that leaving her home will be painful indeed for the applicant, and logistically difficult. But, as I have said, I think that that departure has been foreseen as a possibility by everyone since perhaps July last year, when the PIA was executed. That departure was surely contemplated as a probability in late February of this year. And it has been apparent as a virtual inevitability that required addressing with the utmost urgency for the past four days.

17. As well as that, bearing in mind the whole history of this matter, I cannot accept that the whole process of realising this central asset must simply be set at naught, and start again, with another completion of sale to occur at some indeterminate time in the future, perhaps many months from now.

18. In my opinion, the disrupted and extended process of attempting to bring order to the financial affairs of the applicant must simply now move forward.

19. For all of those reasons, I decline to stay the writ of possession set down for 10.30 tomorrow morning.

20. The order that I simply make is:

(1) The application for stay of the writ under discussion is refused.

**********

Decision last updated: 25 July 2018