Ginelle Finance Pty Limited v Yousif

[2000] NSWSC 569

CITATION:	Ginelle Finance Pty Limited v Yousif & Anor [2000] NSWSC 569
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 12017/99
HEARING DATE(S):	Tuesday 13 June 2000
JUDGMENT DATE:	13 June 2000
PARTIES :	Ginelle Finance Pty Limited v Paul Yousif &Tamam Yousif
JUDGMENT OF:	Michael Grove J at 1

COUNSEL :	M.W. Young (Plaintiff) A. Sandroussi, (Solicitor) ( Defendant)
SOLICITORS:	R.L. Kremnizer & Co Colin Daley Quinn
CATCHWORDS:	Judgment for Possession of Land - Stay of Execution - No Special Point of Principle
DECISION:	Motion Dismissed

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MICHAEL GROVE J

Tuesday 13 June 2000

12017/99 - GINELLE FINANCE PTY LIMITED v PAUL YOUSIF and ANOR

JUDGMENT

1    HIS HONOUR: On 31 May the defendants were granted leave to file a notice of motion seeking certain orders in relation to a judgment entered in favour of the plaintiff. The orders sought in the motion included setting aside of a default judgment and permission for the defendants to be let in to defend.

2    The motion was made returnable in the applications list on 5 June. On that occasion the solicitor for the defendants appeared and a solicitor acting for the plaintiff. By consent the matter was stood over until today and a stay of execution was continued.

3    This morning the solicitor for the defendants has indicated that the only order sought pursuant to the motion is that the execution be stayed until the 30th of this month. Certain statements were made from the Bar table concerning an asserted sale of the property, the subject of the proceedings, but no evidence has been placed before the Court in relation to that. The only material referred to by the solicitor for the defendants was a letter addressed to solicitors indicating that there would not, as at 30 May, be opposition to an application for a stay.

4    I do not read that as an open-ended consent. Indeed, the posture of the plaintiff is that there should be no further extension of the stay, and in support of its opposition to such an order being made it has called evidence from Mr Nazih Alrobady. His evidence was relevantly that in February this year one of the defendants had threatened to burn the house which is on the land the subject of the security upon which the present proceedings are based. In order apparently to lend credibility to that threat Mr Alrobady also gave evidence of a dispute between himself and that defendant concerning a boat and gave evidence that that boat had been the subject of a fire.

5    The solicitor for the defendants has pointed out that there is no evidence that any charge of arson, for example, was brought against his client, and that is true. He extended his submission to say that there was no evidence to say that the boat was burned, but that is not accurate because Mr Alrobady has given evidence upon his oath that this occurred. It appears that, arising out of those proceedings, Mr Alrobady has himself become a creditor of the male defendant and it appears that a writ of execution is lying in the office in relation to his claim.

6    The situation is that I simply have no evidence before me of the asserted sale of the property. The defendant is the moving party upon this motion and has simply put no evidence before the Court, other than the content of the letter which stated that as at 30 May there would be no objection to the application for stay. That being the case, the motion cannot succeed and the motion is dismissed with costs.
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Last Modified: 09/26/2000