Combis v De Andrade (No 2)
[2022] ACTSC 375
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Combis v De Andrade (No 2) |
Citation: | [2022] ACTSC 375 |
Hearing Date: | 16 December 2022 |
DecisionDate: | 16 December 2022 |
Before: | Mossop J |
Decision: | 1. The oral application seeking a stay of the enforcement order is dismissed with costs. |
Catchwords: | CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application – application to stay enforcement order for possession of property – where order already executed – hardship to first defendant not so great and prospects of discharging liabilities not so high to warrant exercise of discretion – application dismissed |
Legislation Cited: | Court Procedures Rules 2006 (ACT), r 2013 |
Parties: | Nick Jim Combis in his capacity as Trustee for the Bankrupt Estate of Roubi De Andrade ( Plaintiff) Bernardo Jose Poege Rebello De Andrade ( First Defendant) Registrar-General of the Australian Capital Territory (Second Defendant) |
Representation: | Counsel G Blank ( Plaintiff) T Crispin ( First Defendant) |
| Solicitors Chamberlains ( Plaintiff) Capital Lawyers ( First Defendant) | |
File Number: | SC 222 of 2020 |
MOSSOP J:
Introduction
This is an oral application for an order seeking that the enforcement order in these proceedings be stayed until further order of the court. It was made by counsel at 3:30pm on the last day of the court term. The solicitor for the applicant (who is the first defendant in these proceedings) gave an undertaking to pay any fees required to be paid in connection with the making of the application.
The order is sought pursuant to r 2013 of the Court Procedures Rules 2006 (ACT), which provides:
(1)On application by the enforcement debtor or other person liable to comply with an enforceable money order or non-money order of the court or by someone else affected by the order, the court may—
(a) by order, stay the enforcement of all or part of the order, including because of facts arising or discovered after the order was made; and
(b) make the orders it considers appropriate, including, for a money order, an instalment order.
…
(4) Unless the court otherwise orders, the filing of the application does not stay the operation of the order.
The application was supported by an affidavit of Bernardo Jose Poege Rebello De Andrade dated 16 December 2022. The affidavit also annexed material relied upon for the purposes of an application made to the Federal Court of Australia. That application was made on 9 December 2022. For reasons which are not clear, the application was only determined this morning. It was dismissed.
The essence of the present application is to stay the order for possession given to the plaintiff as a result of my substantive decision in the proceedings. The relevant chronology is as follows.
(a)On 2 September 2022 the court made a declaration that the first defendant had no legal or equitable interest in the property at block 6, section 32, division Griffith in the Australian Capital Territory also known as 28 Lefroy Street Griffith.
(b)Order 2 made on that day was that the plaintiff is to have judgment for possession of the property.
(c)Order 3 was that the first defendant give vacant possession of the property to the plaintiff no later than 17 October 2022. That date was set having regard to submissions that had been made about difficulties that might arise in relation to vacation earlier than that date.
(d)On 27 September 2022 the solicitors for the plaintiff served on the solicitors for the first defendant a notice about court orders and enforcement options.
(e)On 14 October 2022 order 3 made on 2 September 2022 was vacated and an order was made that the first defendant give vacant possession of the property to the plaintiff no later than 24 October 2022.
(f)An order for the delivery of possession of land was issued at 4pm on 25 November 2022. That was as a result of the filing of an affidavit of that date of the solicitor for the plaintiff which indicated that as at 24 October 2022 the first defendant was living in the property along with his five children and two dogs. An email from the first defendant indicated that he was still living at the house. It suggested that the sum outstanding had been raised and paid to the plaintiff. The response from the plaintiff on 25 October 2022 indicated that no funds had been received at all. It indicated that he was not aware of what finance was being referred to. He sought evidence of the payment. It appears that no funds were in fact paid. The correspondence contemplated a scheme whereby an amount would be paid to the plaintiff sufficient to pay the creditors of the estate as well as to allow a second trustee in bankruptcy to pay creditors of the bankrupt estate.
The evidence in support of the present application referred to the fact that the first defendant and his children have lived at the property for many years. The evidence did not go significantly beyond the information that had been given at the time of the making of final orders as to the desirability of the first defendant and his children being allowed to stay in the property. I accept that preventing the first defendant and his children from being in possession of the property will mean that they are likely to spend Christmas in some temporary accommodation.
I accept that there is a broad discretion that arises under r 2013. I also accept that all of the relevant circumstances must be taken into account for the purposes of exercising the discretion. I accept that one reason why a stay may be granted is if there is a prospect of a refinance occurring which will allow the liabilities which gave rise to the underlying order to be discharged. The real issue is whether it is appropriate in this case to exercise the discretion.
The plaintiff opposed the granting of relief. I do not consider that any relief should be granted. There are a number of reasons for this conclusion.
First, possession had already been obtained. Following the dismissal of the Federal Court proceedings the plaintiff, by assistance of the Sheriff’s officers, police and Domestic Animal Services Rangers obtained possession of the property. The locks have been changed.
Second, there has been considerable time both before and after judgment was given in the proceedings to make any arrangements necessary for refinancing property for discharging the liabilities of Roubi De Andrade’s bankrupt estates.
Third, the arrangements for paying out of the amount owed to the trustees in bankruptcy have not been straightforward and have had complexities which provided some exposure on the trustee’s part. These complexities have arisen because of the apparent desire on the part of the first defendant to use the property as security and to not pay the full value of the property prior to the transfer of that property to him or to his wife. There is some prospect of these difficulties being worked through with the assistance of lawyers, however, there has been plenty of opportunity for that to occur and I do not accept the submission that there should be optimism that if a stay was granted, this could occur promptly. I do not accept the submission made by counsel for the first defendant that if lawyers put their heads together, they could craft a solution promptly. While that is a theoretical possibility, the reality of these proceedings since at least 2 September 2022 tends against optimism in that regard.
Having regard to the history of these proceedings, I do not think that the plaintiff should be impeded in taking steps to finalise the bankruptcy by the possibility of some future agreement with the first defendant while he remains in possession of the property.
Fourth, the finance proposal of which there was evidence involving the availability of $1.22 million is now no longer available. I was told that finance broker remains optimistic, but the fact is that there is not a current proposal which would allow any payout to occur promptly even if it was the case that the mechanism by which this occurred was able to be readily resolved.
In summary, in my view, the plaintiff is entitled to possession of the property without further delay, and in fact, has already obtained possession of the property. The hardship of the first defendant and his children is not so great and the prospects of a prompt payout of what is required to the first trustee in bankruptcy and second trustee in bankruptcy is not so great as to make it appropriate to delay the deliver of possession of the property.
Order
For those reasons, the order of the Court is:
1.The oral application seeking a stay of the enforcement order is dismissed with costs.
I note the undertaking given by the first defendant’s solicitor to pay any fees required to be paid in connection with the making of this application.
| I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 20 February 2023 |
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