GKQ Mortgages Pty Ltd v Ahmad Salim Mouhajar
[2011] NSWSC 918
•14 June 2011
Supreme Court
New South Wales
Medium Neutral Citation: GKQ Mortgages Pty Ltd v Ahmad Salim Mouhajar & ors [2011] NSWSC 918 Hearing dates: 10 & 14 June 2011 Decision date: 14 June 2011 Jurisdiction: Equity Division - Duty List Before: Brereton J Decision: 1. Notice of motion to stay execution of writ for possession dismissed.
2. Writ for possession stayed.
Catchwords: PRACTICE AND PROCEDURE - judgment for possession - judgment provides that payment of moneys by certain date will be full and final settlement - defendants' pay moneys late - subsequent agreement that defendants' pay additional moneys by certain date - defendants' fail to do so - no reason to preclude plaintiff from exercising its legal right.
PRACTICE AND PROCEDURE - Mortgages - judgment for possession -subsequent agreement that defendants' pay additional sum by certain date - defendants' fail to do so - defendants' undertake to pay additional sum today - seriously arguable case that plaintiff no longer entitled to possession - writ for possession stayed.Category: Procedural and other rulings Parties: GKQ Mortgages (plaintiff)
Ahmaf Salim Mouhajar (first defendant)
Ghazwas Mouhajar (second defendant)
ING Bank Australia Limited (third defendant)Representation: Counsel:
Ms K Cooper (plaintiff) (solicitor)
Mr G McCartney (first & second defendants) (solicitor)
Solicitors:
Bransgroves Lawyers (plaintiff)
Simmons & McCartney Lawyers (first & second defendants)
Gadens Lawyers (third defendant)
File Number(s): 2010/297761
Judgment (ex tempore)
HIS HONOUR: On 11 February 2011 Hallen AsJ by consent gave judgment for the plaintiff GKQ Mortgages Pty Limited against the first and second defendants Ahmad Salim Mouhajar and Ghazwas Mouhajar, for possession of their property at Lidcombe, and leave to issue a writ for possession forthwith; that the first and second defendants deliver to the plaintiff vacant possession of the property within fourteen days; and that the first and second defendants pay the plaintiff $316,484.36 plus interest. All this was by way of enforcement of a mortgage dated 10 March 2011 between the first and second defendants as mortgagors and the plaintiff as mortgagee. It was noted that upon taking possession of the property the plaintiff would hand over possession to the third defendant, ING Bank Australia Limited, which has a registered first mortgage; that was pursuant to arrangements made between the plaintiff and the first defendant. Finally, the order provided:
That if the first and second defendants pay the amount of
$236,500 to the plaintiff on or before 25 February 2011 the plaintiff will accept payment of the amount of $236,500 in full and final settlement of the mortgage.
The defendants did not pay the amount of $236,500 to the plaintiff on 25 February 2011, but did so on the following business day, 28 February 2011. This was arranged by their son, Mr Samuel Mouhajar. At that time, there was an exchange of emails between the parties. Ms Eldridge, solicitor for the plaintiff, sent an email to Mr McCartney, solicitor for the first and second defendants, relevantly as follows:
We advise that a new agreement has been reached between our client and Mr Sam Mouhajar. The terms of the agreement are as follows:
1. Our client will accept the bank cheque for $236,500;
2. Mr Mouhajar is to pay a further $13,500 by way of bank cheque on or before 3 March 2011 (the "additional payment").
3. Upon receipt of the additional payment a withdrawal of caveat will be provided by our client.
In a further email on the same day at 1:14 p.m. to Mr McCartney, Ms Eldridge wrote:
Further to the above we confirm that in the event that the additional payment is not made our client will file a notice of motion for a writ for possession.
At 1:27 p.m. on the same day, in an email to Mr Samuel Mouhajar, which was copied to Mr McCartney, she wrote:
We advise that pursuant to the below agreement in the event that the additional payment is not received on or before close of business on 3 March 2011 our client will be filing a notice of motion for a writ for possession. We confirm that the withdrawal of the caveat will not be provided until the bank cheque for $236,500 and the additional payment are received.
Mr McCartney responded at 2.17 p.m.:
Thanks for that.
The defendants contend that the acceptance of the payment of $236,500 on 28 February, albeit late, operated to extinguish the plaintiff's entitlement to possession. The plaintiff contends not only that it did not do so, but that the failure to pay the additional amount has revived the original debt. It is strictly unnecessary to resolve that later question on the present application.
It is, I think, clear, from the email correspondence of 28 February, that faced with the prospect of accepting the proffered payment of $236,500 or rejecting it as too late, the plaintiff chose to accept it. It must have been apparent to the plaintiff that that payment would not likely have been tendered had it not been accepted in satisfaction of the mortgage debt. On the other hand, it is equally clear that it was accepted on the basis that an additional payment would be made. Although it is said that this was negotiated by the defendants' son, he must have been their agent for the purpose of negotiating the resolution of the matter, and in any event the defendants' solicitor was included in the relevant correspondence. From that, I think it is equally clear that payment of the additional amount was a precondition to the plaintiff foregoing its entitlement to possession under the orders made by Hallen AsJ.
All that is necessary for resolution of the present matter is for me to conclude, as I do, that there was no agreement which in the events that happened had the effect of extinguishing the plaintiff's entitlement to possession. However, it does seem to me that the effect of what happened was to limit the plaintiff's entitlement to the sum of $236,500, which has been paid, plus the additional amount referred to in the agreement of 28 February. This conclusion is fortified by the structure of the email of 28 February at 1:10 p.m., indicating acceptance of the bank cheque and a requirement for a payment of a further $13,500, whereupon the withdrawal of caveat would be provided: that is inconsistent with a subsisting entitlement to the balance of the judgment sum.
It seems that a further agreement may have been made, pursuant to which $5,000 of the additional payment was made and an extension granted until 22 April for payment of the remaining $8,500, but the remainder has still not been paid.
In those circumstances, on 14 March 2011 the plaintiff moved the court for the issue of a writ for possession, which duly issued. Although it seems that an earlier proposed eviction pursuant to that writ was cancelled in connection with the agreement to allow the defendants until 22 April to pay the remaining $8,500, that payment not having been made, an eviction has now been appointed for Tuesday next, 14 June 2011.
Notice to vacate was given by the sheriff on 6 May 2011. It is distressing that this should take place over such an apparently small amount, but the defendants have been afforded repeated opportunities and extensions to pay the amount due, and I am afraid I can see no proper basis on which the plaintiff should be kept out of its legal rights any longer. That conclusion is somewhat fortified by the circumstances that the third defendant, which is before the court, also has indicated that its mortgage is in default, and that if the plaintiff were to take possession it would seek to take possession at the first possible opportunity.
For these reasons, I am afraid that I can see no proper basis upon which to stay, at this late stage, the execution of the writ for possession.
I therefore order that the motion filed on 6 June 2011 be dismissed with costs.
Monday 14 June 2011
HIS HONOUR: Last Friday 10 June 2011, I gave reasons for declining to stay the operation of a writ for possession which had issued commanding the Sheriff to take possession of the first and second defendants' property located at Lidcombe in the state of New South Wales, and to give possession thereof to the plaintiff. In the course of giving those reasons, I expressed the provisional view that the effect of dealings between the parties on and from 28 February 2011 was to limit the plaintiff's entitlement to the sum of $236,500 plus the "additional payment" of $13,500. The defendants have now, apparently, raised funds enabling them to procure a bank cheque for the outstanding $8,500 of the additional payment, which the court is assured will be paid to the plaintiff's solicitor's trust account today.
The eviction is appointed to take place in a little under one hour, at noon today. Although the conclusion I expressed on the last occasion about the amount to which the plaintiff was entitled was in no way intended to be a final conclusion, for the reasons there given there is at least a seriously arguable case that the plaintiff's entitlement is limited to that extent, and that upon payment of the remaining $8,500, its right to possession will have been extinguished.
This morning Ms Cooper, for the plaintiff, has drawn my attention to some further communications between the parties on 22 and 23 March 2011, in which it appears that the plaintiff was then asserting that they remained entitled to the whole of the balance of the judgment. However, if my provisional view as to the effect of their dealings on 28 February 2011 in limiting the plaintiff's rights is correct, then the plaintiff's assertions of 22 and 23 March could not revive what had been given away by agreement in return for the immediate payment of the bank cheque on 28 March 2011. So the additional material does not affect the conclusion that there is at least a seriously arguable case that upon payment of the remaining $8,500, the plaintiff would no longer be entitled to possession of the property.
Last Friday there was no suggestion that the defendants would be able to raise the remaining $8,500 in less than several weeks, and for that reason I could see no proper basis upon which to stay, at that late stage, the operation of the writ for possession. As it appears that that sum can now be raised and paid today, that rather changes the position. Mr McCartney for the first and second defendant; has proffered the usual undertaking as to damages, and has indicated that his clients undertake to make the payment today, apparently by means of their son tendering a bank cheque to the plaintiff's solicitor.
My orders are:
(1) Upon the first and second defendants by their solicitor giving to the court the usual undertaking as to damages, and upon those defendants by their solicitor further undertaking to the court that they will forthwith pay by tendering to the plaintiff's solicitors a bank cheque in the sum of $8,500, I order that the operation of the writ for possession issued on 16 March 2011 be stayed until further order.
(2) Grant leave to the defendants' solicitor to notify the Sheriff of this order by telephone in the first instance.
(3) Direct that this order be entered forthwith.
(4) Direct that the plaintiff serve any further affidavit evidence by 21 June 2011.
(5) Direct that the defendants serve any further affidavit evidence by 28 June 2011.
(6) Direct that the plaintiff lodge with my associate and serve on the defendants' solicitors its written submissions by 5 July 2011.
(7) Direct that the defendants lodge with my associate and serve on the plaintiff's solicitors their written submissions by 12 July 2011.
(8) Adjourn the matter before me on Tuesday 16 August 2011 at 10 a.m. for further hearing.
(9) Grant liberty to the plaintiff to apply on 24 hours notice in the event that the payment of $8,500 is not made.
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Decision last updated: 19 August 2011
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