Commonwealth Bank of Australia
[2010] NFSC 3
•24 March 2010
SUPREME COURT OF NORFOLK ISLAND
Commonwealth Bank of Australia v Evans [2010] NFSC 3
Citation: Commonwealth Bank of Australia [2010] NFSC 3 Parties: COMMONWEALTH BANK OF AUSTRALIA v MICHAEL CHARLES ELMORE EVANS and TESS SALVINA EVANS File number(s): SC 3 of 2008 Judges: JACOBSON CJ Date of judgment: 24 March 2010 Date of hearing: 4 February 2010 Date of last submissions: 4 February 2010 Place: Sydney Category: No catchwords Number of paragraphs: 20 Solicitor for the Plaintiff: Mr M Thomas (Henry Davis York Lawyers) Solicitor for the Defendants: Mr M Zande
IN THE SUPREME COURT OF NORFOLK ISLAND
NORFOLK ISLAND REGISTRY
SC 3 of 2008
BETWEEN: COMMONWEALTH BANK OF AUSTRALIA
Plaintiff
AND: MICHAEL CHARLES ELMORE EVANS
First DefendantTESS SALVINA EVANS
Second Defendant
JUDGE:
JACOBSON CJ
DATE OF ORDER:
4 FEBRUARY 2010
WHERE MADE:
SYDNEY (WITH TELEPHONE LINK TO NORFOLK ISLAND)
THE COURT ORDERS THAT:
1.The Defendants deliver up possession of the land being Lot 54 Section 9 Portion 30w1 situated at 30w1 Cascade Road, Norfolk Island.
2.The Defendants’ application for a stay of enforcement of the order dated 13 March 2009 for delivery of the land being Lot 54 Section 9 Portion 30w1 situated at 30w1 Cascade Road, Norfolk Island, be dismissed.
3.The Defendants pay the Plaintiff’s costs of these applications.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE SUPREME COURT OF NORFOLK ISLAND
NORFOLK ISLAND REGISTRY
SC 3 of 2008
BETWEEN: COMMONWEALTH BANK OF AUSTRALIA
Plaintiff
AND: MICHAEL CHARLES ELMORE EVANS
First DefendantTESS SALVINA EVANS
Second Defendant
JUDGE:
JACOBSON CJ
DATE:
24 MARCH 2010
PLACE:
SYDNEY
REASONS FOR JUDGMENT
On 13 March 2009, I made orders by consent for the First Defendant (“Mr Evans”) to give possession to the Commonwealth Bank of Australia (“the Bank”) of a residential property being all the land comprised in certificate of title Lot 36, Section 10, Portion 123b1 being the land situated at 123b Red Road, Norfolk Island (“the residential property”), and for Mr Evans and the Second Defendant (“Mrs Evans”) to give possession to the Bank of a commercial property being all the land comprised in certificate of title Lot 54, Section 9, Portion 30w1 being the land situated at 30w1 Cascade Road, Norfolk Island (“the commercial property”).
The consent orders also provided for the Bank to be given leave to forthwith issue a writ of possession in respect of the residential property and the commercial property.
The consent orders were made following upon the execution on 9 March 2009 of a Deed of Forbearance between the Bank and Mr and Mrs Evans. Under the Deed of Forbearance, Mr and Mrs Evans acknowledged that they were in default under certain loan facilities to the Bank and under certain mortgages granted by them to the Bank over the residential property and the commercial property.
The Deed of Forbearance provided that upon the conclusion of the Forbearance Period stated in the Deed, the Bank would be at liberty to take enforcement action to recover the amount owed to the Bank.
Importantly, the Deed of Forbearance also provided that Mr and Mrs Evans were permitted to remain in the residential property and the commercial property until the expiration of:-
§the Forbearance Period; or
§any further period agreed to in writing by the Bank in its absolute discretion.
The Forbearance Period expired on 30 April 2009 and the Deed specifically provided in Clause 7.2 that at the conclusion of that period, or any further period agreed to in writing by the Bank:-
“Mr and Mrs Evans must immediately vacate the Properties.”
Mr Evans vacated the residential property on 13 December 2009 but Mr and Mrs Evans remain in possession of the commercial property.
On 4 February 2010, I had before me an application by the Bank for an order for delivery of possession of the commercial property. I also had before me an application by Mr and Mrs Evans for a stay of the consent order dated 13 March 2009 for the issue of a writ of possession in respect of the commercial property.
Upon hearing both applications, I was satisfied that I should grant the order sought by the Bank and that I should refuse the stay sought by Mr and Mrs Evans. My reasons are set out briefly below.
Quite plainly, Mr and Mrs Evans are in default under their mortgages to the Bank and they consented to orders made in March last year that they hand over possession to the Bank which was entitled forthwith to issue a writ of possession.
The only impediment to the Bank exercising its right to take possession in March 2009 was its contractual agreement in the Deed of Forbearance. Under the Deed, Mr and Mrs Evans were permitted to remain in the residential property and the commercial property until, at the latest, 30 April 2009.
There was nothing to suggest that the Bank permitted Mr and Mrs Evans to remain in either of the properties beyond that date. But even if the Bank permitted Mr and Mrs Evans to remain in either of the properties after 30 April 2009, I am satisfied that it is now entitled to take possession of the commercial property.
It is clear that any extension of time by the Bank beyond 30 April 2009 was in the Bank’s absolute discretion and that the Bank now wishes, as it is entitled, to have possession of the commercial property. It was also entitled to possession of the residential property but that was vacated before the recent hearing.
The three grounds upon which Mr and Mrs Evans sought a stay were the hardship to them of vacating the commercial property; the fact that they are using it to conduct progressive dinner tours from that property; and that their vacation of the commercial property may lead to its deterioration which will impact on its “saleability” and value.
They believe that it is in the Bank’s commercial interests for them to be able to conduct their business on the commercial property pending sale.
The short answer to the application for a stay is that it is for the Bank to determine what may be its best commercial interests. The Bank has determined that it is in its interests to have possession and Mr and Mrs Evans specifically agreed that the Bank was entitled to take possession by 30 April 2009.
I cannot determine whether the discontinuation of the business would affect the value of the commercial property. But, in any event, it is not open to Mr and Mrs Evans to rely on that because they agreed to hand over possession no later than the end of April, that is to say more than nine months ago.
The same reasoning applies to the hardship ground which was relied on to support a stay.
Accordingly, I will make the order for the delivery of possession of the commercial property sought by the Bank.
The Bank asked for an order for costs. The Bank was successful on its application. Accordingly, I order Mr and Mrs Evans to pay the costs of the stay application and the Bank’s application for possession.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Jacobson . Associate:
Dated: 24 March 2010
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