National Australia Bank Limited v Clark
[2015] NSWSC 1077
•03 August 2015
Supreme Court
New South Wales
Medium Neutral Citation: National Australia Bank Limited v Clark [2015] NSWSC 1077 Hearing dates: 3 August 2015 Decision date: 03 August 2015 Jurisdiction: Common Law Before: Button J Decision: (1) The notice of motion of 3 August 2015 is dismissed.
(2) Each party must pay their own costs.Catchwords: Application for stay of proceedings – no proceedings on foot in Supreme Court of New South Wales – creditor’s petitions pending – application dismissed Category: Procedural and other rulings Parties: National Australia Bank (Plaintiff)
David Wayne Clark (First Defendant)
Renae Louise Clark (Second Defendant)
Voxxy Pty Ltd (in liquidation) (Third Defendant)Representation: Solicitors:
Turks Legal (Plaintiff)
In person (Defendants)
File Number(s): 2009/293050
EX TEMPORE Judgment
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This matter came before me in the Duty List as an ex parte motion brought by Mrs Clark on behalf of herself and her husband. They were not legally represented. I refused to deal with the matter ex parte, and Ms Reynolds, solicitor for the National Australia Bank (NAB), very kindly attended at short notice to assist the administration of justice.
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To state the background very succinctly, the motion sought that proceedings in this Court be stayed for a number of weeks, so that the Clarks could prepare pleadings during that time. It was also a little unclear whether a stay of creditor’s petitions in the Federal Court was also sought.
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The background may be shortly stated. The NAB lent the applicants and a company associated with them large sums of money, secured by at least one mortgage over real property. The position of NAB is that there was default, and the bank obtained a judgment against the Clarks in this Court for a very substantial sum quite some time ago. In the meantime, a mortgage was enforced on the family home at Kurnell. It is agreed between the parties that there is approximately $300,000 outstanding on the judgment debt.
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The bank has issued a creditor’s petition against each defendant. All going smoothly, that will not return to another court before 12 October 2015, on which date it is listed for hearing. The bank, I am told, has taken no other steps to enforce its judgment debt, and without having been given a formal undertaking by Ms Reynolds, she informed me that she thinks it very unlikely that any enforcement steps will be taken between now and 12 October.
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As well as that, so long as interlocutory steps proceed smoothly, it is not thought that the bankruptcy proceedings will be brought back to court before that date.
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In other words, there are no “proceedings” on foot in this Court; there is a judgment. There are proceedings on foot in the Federal jurisdiction, but I would need a great deal of persuasion that I have any power to interfere in those.
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The Clarks believe that an employee of the bank somehow dishonestly interfered with their accounts. They also believe that that interference could well have played some role in the unravelling of their financial affairs, though I must admit that the precise effect that the alleged wrongdoing is said to have had is a little unclear in my mind. It seems that for some time they have been seeking documents from the bank in order to substantiate their belief that things were done maliciously and not accidentally. They still hope and propose in the future to rely upon any of that material to reopen and impugn the judgment debt as best they can.
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For the time being, having had a constructive discussion with both Mrs Clark and Ms Reynolds, I am not inclined to make any orders as sought by the defendants. The simple fact is that there is a judgment debt, which the defendants can seek to attack as they see fit. I accept the proposition of Ms Reynolds that it is unlikely that there would be any enforcement of that judgment in the next several weeks. Separately, so long as the defendants comply with the timetable for service of documents and so forth, the bankruptcy proceedings will not be returning to court for well over two months.
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In short, I do not see any basis, legal or evidential, upon which I could or should stay anything.
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Separately, I respectfully suggested in the course of discussion that the defendants should seek legal help in this matter, perhaps from a Community Legal Centre if they are impecunious, in light of the obvious frustration and distress from which they are suffering.
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The final question is the question of costs of today. I think there was force in the submission of Ms Reynolds that her client should be compensated for its expenditure of time, money and work in terms of her attendance at very short notice in the Supreme Court. But on reflection, I have taken into account that here are two unrepresented people who lost their home not that long ago, and who have a firm belief that they have been victims of a serious injustice. As a matter of discretion, I do not propose to order anything other than that each party pay their own costs of today. Having said that, a copy of this judgment will of course remain on the file, and the defendants must understand that if ex parte proceedings are commenced again that do not find success, a different approach could well be taken in the future.
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I make the following orders:
The notice of motion of 3 August 2015 is dismissed.
Each party must pay their own costs.
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Decision last updated: 14 August 2015
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