Mango Capital Pty Ltd v Rehal
[2022] NSWSC 128
•20 January 2022
Supreme Court
New South Wales
Medium Neutral Citation: Mango Capital Pty Ltd v Rehal [2022] NSWSC 128 Hearing dates: 20 January 2022 Date of orders: 20 January 2022 Decision date: 20 January 2022 Jurisdiction: Common Law Before: Garling J Decision: See [23]
Catchwords: JUDGMENTS AND ORDERS — stay of execution — writ of possession — history of non-compliance with orders — steps taken to vacate the premises — positive test to COVID-19 and requirement to isolate — practical impossibility to execute the writ — writ stayed — additional direct order to vacate premises made
Legislation Cited: Not Applicable
Cases Cited: Not Applicable
Texts Cited: Not Applicable
Category: Procedural rulings Parties: Mango Capital Pty Ltd (P)
J S Rehal (D1)
R K Rehal (D2)Representation: Counsel:
Solicitors:
B Andrews (P)
Self-Represented (D2)
Summer Lawyers (P)
File Number(s): 2020/293334 Publication restriction: Not Applicable
EX TEMPORE Judgment
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This is an application made urgently by the defendants in the primary proceedings, Jagit Singh Rehal and Raminder Kaur Rehal.
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The applicants seek urgently a stay of any requirement served by the Sheriff for them to vacate a property at Marayong, New South Wales 2148 ("the property") tomorrow, 21 January 2022.
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The application is opposed by the plaintiff, respondent to this application, Mango Capital Pty Limited (“Mango Capital”).
The History of the Matter
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It is apparent from material available to the Court that Mango Capital is the holder of a registered second mortgage over the property. That second mortgage secures the repayment of a loan made on 24 October 2019 by Mango Capital to the first defendant. The second defendant, Mrs Rehal, agreed to guarantee the first defendant's repayment obligations.
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The loan was made for a period of six months. This required the principal sum and any other accrued debits to be repaid by April 2020. The defendants failed to repay the secured money by the final repayment date. The evidence discloses that in fact the defendants made no payments at all under the loan agreement.
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Relevant default notices were served in August 2020 by Mango Capital. A Statement of Claim was filed on 12 October 2020. Notwithstanding personal service, no defences were filed and on 11 January 2021, a Notice of Motion seeking default judgment was filed and judgment by default was entered on the following day, 12 January 2021.
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On 21 January 2021, the plaintiff filed a Notice of Motion for leave to issue a Writ of Possession. Leave was granted and a Writ of Possession was issued on 27 January 2021. That Writ was first scheduled to be executed on 6 April 2021.
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On 29 January 2021, the defendants sought, by motion, to set aside the default judgment entered against them on 12 January 2021. That motion was heard by the Common Law Registrar on 13 April 2021 and dismissed with an order for costs in favour of Mango Capital on 15 April 2021.
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The hearing of that Notice of Motion necessitated the rescheduling of the execution date of 6 April 2021. Ultimately the Writ was finally fixed for execution on 27 October 2021.
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Prior to that time on 29 July 2021 an application to stay the eviction was made by the defendants to this Court. It was dismissed by the Chief Judge at Common Law on that date, in part because evictions were not then proceeding due to a moratorium introduced by the Government during the course of the COVID-19 pandemic.
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A further application to stay the eviction was made on 26 October 2021, a day before the eviction was scheduled to take place. That application was heard by Walton J. I do not have access to his Honour's reasons, but his Honour granted a stay to 15 November 2021, conditionally, upon the payments of all interest which fell due up to that date or else arrangements being made for the sale of the property.
The Present Circumstances
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I am told, and I accept, that no payments were made as his Honour had required as a condition of granting the stay. An eviction has been scheduled for 10am on 21 January 2022. I am satisfied, notwithstanding statements to the contrary from the applicants, that that Notice came to their attention at some time in the first week of December 2021. On the evidence before me, at some time prior to 12 January 2022, steps were taken by the applicants in preparation for the vacation of the premises, and the obtaining of alternative accommodation.
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The information placed before the Court by way of emails make it clear that, first, arrangements are in place for the execution by Mrs Rehal and her daughter of a six-month accommodation lease commencing with effect from 31 January 2022. The lease is to be signed on 30 January 2022. Having regard to the identity of the landlord, I am satisfied that what is in place is a genuine lease arrangement.
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Secondly, I am satisfied that the two necessary pre-conditions to the signing of a lease, namely the payment of two weeks’ rent in advance to the intended landlord and the payment of a rental bond of four weeks rental to the NSW Rental Bond Board have been made. In those circumstances I am satisfied, on the balance of probabilities, that the applicants have made appropriate and firm arrangements to move from the property to alternative accommodation commencing on 31 January 2022.
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Thirdly, the emails confirm to me that Mrs Rehal has received the results of a COVID-19 PCR test conducted on 16 January 2022. Those results were received at 8.49pm on Tuesday 18 January 2022 by email from NSW Health. That email informed Mrs Rehal that she had been detected as COVID-19 positive. The email also informed her that she needed to self-isolate immediately for seven days during which time a member of NSW Health would be in contact with her.
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The requirement for self-isolation is further explained by a link contained within that email to an internet page of the NSW Government which sets out this information:
"Self-isolation rules for cases and people exposed to COVID-19:
'Self-isolation means you must stay at your home or accommodation and remain separated from others. You can only leave to get medical care (such as a COVID-19 test) or in an emergency. You cannot have visitors.
You must self-isolate for the amount of time you are told to. Your self-isolation period starts from the day you were tested or exposed to someone with COVID-19. If you have to self-isolate for 7 days, for example, and you were tested at 10am on Tuesday, your self-isolation period ends at 10am on the following Tuesday. You must follow any health advice provided about when you can leave self-isolation'.”
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The e-mail from NSW Health suggests that the seven-day self-isolation period commences on receipt of the email which is Tuesday, 18 January 2022. It may be that the seven-day self-isolation period commences from 16 January 2022, when the PCR test was conducted, however the resolution of that question is unnecessary. The simple fact of the matter is as at today, given that an eviction is scheduled for 10.00am tomorrow, I am satisfied on the balance of probabilities that the applicant, Mrs Rehal, is COVID positive and is obliged to self-isolate and cannot come into contact with anyone else. In those circumstances, it is a practical impossibility for her to move out of her home by tomorrow and take up new accommodation.
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I accept, as Mr Andrews, the solicitor for Mango Capital, has urged upon me, that to date, the many Notices of Motion seeking to stay orders have been all made at the last minute. They are generally, he submits, without any significant merit and demonstrate a complete inability on the part of the applicants to comply with any court orders or to take any steps to arrange for the possession of the property to be handed over to Mango Capital or to take any steps to arrange for and undertake the repayment of the outstanding debt owed to Mango Capital.
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These matters are, I conclude, annoying to Mango Capital, act to its prejudice and disadvantage, and suggest that for a year or so the applicants have simply chosen to flout the Court's order when judgment for possession was given.
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On the other hand, the circumstances which I have described above satisfy me, first, that the applicant, Mrs Rehal, cannot move out of the property at the present, could only move out of the premises on either 23 or 25 January 2022, and that she has made firm arrangements to move out by 31 January 2022.
Conclusion
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In those circumstances, it is a just and practical outcome to stay the execution of the Writ of Possession to enable all of these steps to occur, namely, the period of self-isolation to expire, the property to be packed and readied for vacation and for removalists to attend to remove all furniture and belongings from the property.
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However, I am not satisfied I should simply stay the Writ of Execution. Rather, having regard to the long history of inaction on the part of the applicants and the fact that this current extension of the date of execution of the Writ is a matter in the discretion of the Court, which effects some limited prejudice to Mango Capital but which benefits the applicants, I propose to make the defendants vacate the property by making a direct order to that effect so that if the applicants’ intransigence and inaction continues, they are liable to be dealt with for contempt of court which may in some circumstances and in some cases, result in a term of imprisonment.
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The orders of the court are as follows:
Stay the execution of the Writ of Possession issued in favour of the respondent with respect to the property at Marayong NSW 2148 until no later than 5.00pm on Monday, 31 January 2022.
Order the applicants to vacate the property no later than 5.00pm, 31 January 2022.
Order that the defendants are to make available all keys and copy keys to all locks on the property to an employee or officer of Aster Alliance Pty Ltd as agent for the respondent no later than 5.00pm, 31 January 2022.
Order the applicants to pay the costs of and associated with application.
Order that the costs be paid forthwith.
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Decision last updated: 28 June 2022
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