Commonwealth Bank of Australia v Coppola

[2013] NSWSC 1391

Supreme Court

New South Wales

Medium Neutral Citation:

Commonwealth Bank of Australia v Coppola [2013] NSWSC 1391

Hearing dates:

20 September 2013

Decision date:

20 September 2013

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Defendants' application for a further stay on the execution of the writ of possession refused.

2. Plaintiff granted leave to execute writ of possession forthwith.

Catchwords:

REAL PROPERTY - possession of land - application for stay of execution - fourth application - each application based on proposal to refinance - earlier stays granted on terms - terms not complied with - multiple caveators - no evidence of arrangements with caveators - conceded shortfall in funds available - further stay refused

Cases Cited:

Commonwealth Bank of Australia v Coppola [2013] NSWSC 830

Category:

Principal judgment

Parties:

Commonwealth Bank of Australia (Plaintiff)
Elio Coppola (First Defendant)
Maria Coppola (Second Defendant)

Representation:

Counsel:
K Carter (Plaintiff)
P Yazbeck (Defendant)
Solicitors:
Gadens Lawyers (Plaintiff)
Cambridge Law (Defendants)

File Number(s):

2009/296515

Judgment

1. These proceedings commenced in 2009, seeking possession of a property at 11 Shackel Avenue, Concord and a property at 255 Stanmore Road, Stanmore, and seeking judgment for two sums of money, owed under two separate loan facilities obtained by the Defendants from the Plaintiff.

1. On 6 December 2012, judgment was given by Johnson J, for possession of the two properties. Writs for possession were issued on 16 January 2013. The sheriff issued a Notice to Vacate on 22 January saying that the writs would be executed on 5 and 7 March, respectively, for the two properties.

1. On 4 March, that is, the day before the first writ was due to be executed, application was made to Campbell J to stay the writs. Campbell J stayed the writs on terms until 4 May 2013.

1. On 30 April, the Sheriff's Office issued new Notices to Vacate scheduling execution for 12 and 13 June 2013, respectively. On 12 June, the Plaintiff took possession of the Stanmore property.

1. On 13 June, that is, the day on which the second writ was to be executed, Slattery J stayed the execution of that writ until 2 July: Commonwealth Bank of Australia v Coppola [2013] NSWSC 830. On 11 July he continued to stay that writ until 16 July. He delivered a judgment on the first occasion on 13 June 2013. At that time the Defendants were unrepresented but a Mr Rory McDonnell, who was a finance broker, was given leave to appear for the Second Defendant.

1. Mr McDonnell provided some documents disclosing that RAMS had offered to provide funding of $2.1 million to go towards refinancing the Plaintiff's debt. Other evidence was provided which led Slattery J to say at [14] that:

It looks like 90% of the funds have been approved. And there are advanced negotiations to try and limit the quantum of the claims of the other secured creditors. It seems appropriate that a further opportunity be given to allow these negotiations to be completed, although the opportunity will be a very limited one.

1. It was in those circumstances that his Honour stayed the execution of the writ until 2 July and then extended it until 16 July, on a subsequent occasion.

1. On 18 July, the Sheriff's office issued a third notice to vacate in relation to the Concord property. Execution was scheduled for 8 August.

1. On 8 August, the Defendants made application to Adams J to seek a stay of the writ. Execution of the writ on that day was cancelled and Adams J heard the application. He stayed execution and re-listed the proceedings before himself on 15 August.

1. On 15 August, Adams J made the following orders:

1. The writ remains in the office.

2. A further amount of $100,000 is to be paid by cheque delivered to Gadens Lawyers made payable to the Commonwealth Bank by 22 August 2013.

3. The Defendants are to give written evidence of the final approval of the proposed refinancing by the close of business 5 September 2013.

4. The Defendants are to pay all outstanding monies under the mortgages on or before 12 September 2013."

1. The $100,000 was not paid by the due date, evidence of final approval for the proposed refinance was not provided by the date stipulated and all outstanding monies were not paid by 12 September 2013.

1. The matter came before me on Tuesday of this week, 17 September, in the Duty Judge's list. At that stage, I was provided by a Mr McDonnell with some further information, albeit not in sworn form, concerning what had happened since the matter was before Adams J and what was proposed in terms of the refinancing of the debt. It was said that a further cheque had been paid by Westpac Bank cheque of $100,000 apparently sourced from the Second Defendant's brother, Charles Buda from his superannuation.

1. I was not satisfied on Tuesday that there was adequate evidence to justify any further stay. It was not at all clear that the RAMS loan which had been approved, only valid for three months, at some time much earlier this year was still available. Further, there was not adequate evidence about how the various caveators were to be paid. To enable evidence of all of these matters to be provided, I stood the matter over to today.

1. This morning, Mr Yazbeck, a solicitor, has appeared on behalf of Mrs Coppola having just been instructed in the matter. Mr Yazbeck sought a further two-week adjournment so that all of the proposals for finance could be finalised. He has provided to me a spreadsheet of what he says is outstanding to the various parties together with what is available by a loan from RAMS and ANZ and other private persons. According to that spreadsheet the shortfall at the present time is said to be $31,112.

1. However, Mr Yazbeck, told me quite properly that the bank cheque that had been provided from Westpac was not met on presentation because it was ascertained that the account from which those funds were sourced had been frozen. There is no other explanation in relation to that. But the fact that a bank cheque has bounced gives rise to very serious concerns.

1. At the very least, the amount of the shortfall is therefore $131,112.

1. The Plaintiff does not accept that the Defendant's figures are in any event accurate. The Plaintiff's solicitor has provided her own spreadsheet which tends to show that the shortfall is in excess of $461,000. It is not necessary for me to determine which of the amounts of shortfall is the correct one.

1. Mr Yazbeck read an affidavit of Mr McDonald, sworn on 19 September. That affidavit disclosed that the ANZ loan has been unconditionally approved and can settle when the caveats are lifted. The affidavit also disclosed that the RAMS loan approved earlier this year of $2,100,000 was still available. It also asserted that Mr Buda is able to obtain some extra finance to assist.

1. What the evidence does not demonstrate is that any of the existing caveators have reached an agreement with the Defendants to lift their caveats because final arrangements have been made by them to pay out the debts that are owing to them.

1. It is for that reason that the ascertaining of the correct shortfall is immaterial to a determination of the present application. The position with the caveators had not been finalised when the matter came before Adams J, it had not been finalised when it came before me earlier in the week and it has still not been finalised. The only proposal that can make up the shortfall whatever it is, is the provision of funds from Mr Buda. Since he was the source of the funds for the cheque which has now been stopped there must be considerable doubt in accepting that Mr Buda will be able to provide any further funds.

1. Additionally, it seems to be accepted that another cheque from a similar source, payable to Simon Hall, the petitioning creditor against the Second Defendant, has also bounced.

1. I am not satisfied that any purpose would be served by granting any further extension of time for the Defendants to refinance these properties. They have been given more than sufficient opportunity to do that and have not yet managed to achieve it.

1. I was informed that the Concord property is not the home of the Second Defendant but rather is an investment property. Although that property has a tenant in it, who I was told was an aged lady, I do not consider that I have to place any weight on her position. Special consideration is often given where the property, the subject of the possession order, is a defendant's home. But this is not so in the present case.

1. I remind myself again that judgment was entered on 6 December 2012, some nine months ago and that the Defendants have obtained stays of the writ on three or four occasions, all in the hope that refinance would be available. Conditions which have been imposed on those stays have not been met.

1. In my opinion the better course for all parties including the Defendants is that this matter now be brought to finality to reduce the ever increasing amount of interest whether default or otherwise that is accruing on the loans. The Defendants' application for a further stay is refused. Execution can be effected forthwith.

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Decision last updated: 20 September 2013