Commonwealth Bank of Australia v Francis

[2010] VCC 1427

IN THE COUNTY COURT OF VICTORIA Revised from Tape

Not Restricted

AT MELBOURNE
CIVIL DIVISION

COMMERCIAL LIST – BANKING & FINANCE DIVISION

Case No. CI-09-01091

COMMONWEALTH BANK OF AUSTRALIA	Plaintiff
(ABN 48 123 123 124)
v
MIRNA FRANCIS	Defendant

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JUDGE:	HER HONOUR JUDGE KENNEDY
WHERE HELD:	Melbourne
DATE OF HEARING:	6 October 2010
DATE OF JUDGMENT:	6 October 2010
CASE MAY BE CITED AS:	Commonwealth Bank of Australia v Francis
MEDIUM NEUTRAL CITATION:	[2010] VCC 1427

REASONS FOR JUDGMENT

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Catchwords: Stay on execution pursuant to r 66.16 County Court Civil Procedure Rules 2008 – defendant signed an exclusive sale authority – whether Court should stay a warrant.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. T. P. Warner	Gadens
For the Defendant	In person
HER HONOUR:

1          This is the return of a summons dated 30 September 2010 filed by the defendant, Ms Francis. The summons seeks an order that a warrant of possession dated 18 August 2010 be put “on hold”.

Background

2          This proceeding was issued on 19 March 2009. Various attempts were made to serve the defendant during the course of 2009. There is a strong suggestion in the plaintiff’s material that the defendant was evading service. In the result, His Honour Judge Holt made an order for substituted service on 1 December 2009.

3          Judgment in default of appearance was subsequently obtained on 2 March 2010 in an amount of $281,407.84 together with $13,710.38 in interest and $1,419.70 for costs together with possession of the land described in Certificate of Title Volume 10480 Folio 331 situated at and known as Unit 6 12-14 Hood Crescent, Fawkner Victoria 3060 (the property).

Principles

4          In Talston Pty Ltd V Daisley[1] Kaye J helpfully summarises the relevant principles as to whether a court should stay execution of a judgment. At paragraph 10 His Honour states:

“The authorities recognise that under rule [66.16] the Court has a wide discretion … 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 (1989) (WA) R 242 at 244.”

[1] [2004] VSC 23

Application of Principles

5          This matter was initially returnable before me yesterday at which point the defendant handed up a large bundle of material. I then stood the matter over until today. This short adjournment has given me an opportunity to read the material that has been put before the Court.

6          Much of the material does not address the principles that are relevant as enunciated from Talston. Various matters were put which seem to go more towards whether or not the judgment was correctly obtained. However the most significant matter raised was the execution of an exclusive sale authority by the defendant.

7          The date of the sale authority produced is 10 September 2010. It is in the name of Lewis Beatty Pty Ltd.

8          Ms Francis asserted orally that a board has been placed in the front of the property which is being offered for private sale and not auction. Ms Francis fairly conceded that there have been no offers made on the property at all. This is notwithstanding that it is now almost one month since the authority was signed.

9          Given the absence of offers and effluxion of time, I am not persuaded that the defendant could be in a better position to pay out the plaintiff through the sale of the property or otherwise if I was to grant a stay. There is nothing on the material to suggest that the property will be sold in the near future.

10        In terms of the other matters raised:

(a) it has been suggested that the loan should be an interest only loan and that some application has been made for the loan to be interest only. However, there is nothing to suggest that the bank has approved or agreed to an interest only loan. Again, it also seems to be related to the validity or quantum of the judgment itself rather than enforcement;

(b) reference is made in the material to applications for finance. One application has apparently been made to HSBC and appears to be dated after the warrant. It is unclear when another application (to a group called the Savings Alliance Credit Company) was made. In any event, there there is no evidence to suggest that these applications have been or will be successful such as to suggest any utility in the grant of a stay;

(c) the defendant also suggested that there are valuable items at the property. Unfortunately Ms Francis appears to be proceeding under somewhat of a misconception that the bank is somehow entitled to take possessions of these items which is not the case. Certainly, I accept that there will be disruption. However as Kaye J noted in the matter of Talston ( at ]19]) that it is a regrettable but inevitable consequence of the plaintiff having rights which have already been upheld by the court;

(d) the defendant also submitted that she had a large amount of equity in the property which was a valuable property. However, if that proves to be the case, she will benefit as long as the judgment is firstly satisfied. It does not assist her application for a stay.

11        Having considered all of the matters above, they do not in my view weigh in favour of the application made by the defendant. This is particularly so given the context wherein the application is made, namely in a proceeding which has been relatively longstanding (having been issued in March 2009 in circumstances wherein judgment was only obtained after a successful application for substituted service).

12        The plaintiff also, fairly, cited a decision of the Court of Appeal in the matter of Komba v National Australia Bank Limited[2]. However, although the Court was prepared to grant a stay in that matter, the facts are distinguishable. In particular, it appears that the Court was satisfied that there were a number of interested prospective purchasers in that case.

[2] [2010] VSCA 232

Conclusion

13        I am not satisfied that it is appropriate to order a stay.

14          The defendant’s summons dated 30 September 2010 will be dismissed.