National Australia Bank Limited v Hunwick

[2017] NSWSC 570

Supreme Court

New South Wales

Medium Neutral Citation:	National Australia Bank Limited v Hunwick and Anor [2017] NSWSC 570
Hearing dates:	9 May 2017
Date of orders:	09 May 2017
Decision date:	09 May 2017
Jurisdiction:	Common Law
Before:	Johnson J
Decision:	Writ of execution stayed until 5.00 pm on 30 May 2017.
Catchwords:	PRACTICE AND PROCEDURE - claim for possession of land following mortgage default - order for possession - writ of execution issued - application by tenant for stay of execution - health issues - short-term stay granted
Legislation Cited:	---
Cases Cited:	---
Texts Cited:	---
Category:	Principal judgment
Parties:	National Australia Bank Limited (Plaintiff) Rodney Darryl Hunwick (First Defendant) Trevor Noel Hunwick (Second Defendant) Achilles Constantinidis (Applicant)
Representation:	Solicitors: Ms BR Challis, Dibbs Barker Lawyers (Plaintiff) No Appearance (First and Second Defendants) Mr PJ Beazley, Beazley Boorman Lawyers (Application - Achilles Constantinidis)
File Number(s):	2016/162171
Publication restriction:	---

Judgment

1. JOHNSON J: Before the Court, is a Notice of Motion brought by Achilles Constantinidis, who seeks urgent relief in proceedings between the Plaintiff, National Australia Bank Limited, and the First and Second Defendants, Rodney Darryl Hunwick and Trevor Noel Hunwick.

2. The Plaintiff filed a Statement of Claim on 26 May 2016 alleging mortgage default on the part of the Defendants and seeking an order for possession of a property at 22 Derriwong Road, Dural. The Court has been informed that Rodney Darryl Hunwick is bankrupt. Trevor Noel Hunwick, his father, is the other Defendant.

3. Mr Constantinidis, according to the evidence before me, has been a tenant of the premises at 22 Derriwong Road, Dural for some considerable time.

4. In August 2016, the Plaintiff obtained default judgment against both Defendants.

5. On 24 March 2017, application was made for a writ of possession with respect to the Dural property. At that time, evidence was filed for the Plaintiff indicating that the level of indebtedness with respect to this mortgage arrangement exceeded $5.4 million.

6. Placed before the Court on this application have been an affidavit of Achilles Constantinidis sworn 9 May 2017 and an affidavit of Brigitte Challis also sworn 9 May 2017.

7. On the present application, Mr Beazley appears for Mr Constantinidis and Ms Challis appears for the Plaintiff.

8. There is presently scheduled by the Sheriff of New South Wales, execution of the writ of possession with respect to the Dural property which is to take place at 10.30 tomorrow morning. Mr Constantinidis remains in occupation of the premises.

9. From time to time in the Possession List of this Court, there are circumstances where a tenant is in occupation of the premises but may not have notice of what is happening where there is a claim for possession of land following mortgage default. However, that is not this case. The evidence before the Court indicates that Mr Constantinidis has been contacted either in writing or by telephone on a number of occasions since October 2016, and has been well aware of the fact that these proceedings have been on foot.

10. I should indicate that the evidence suggests that Mr Constantinidis has some significant occupational involvement in the finance industry, although he does have, as well, some health issues.

11. There is evidence before the Court that a letter dated 8 March 2017 from the solicitors for the Plaintiff was sent to Mr Constantinidis and was received by him. That letter from Ms Challis referred to the many discussions she had with Mr Constantinidis since October 2016. It was made clear that since October 2016, despite having no obligation to do so, the Plaintiff had withheld enforcing the judgment to allow Mr Constantinidis to make arrangements to vacate the Dural property. Mr Constantinidis was informed that steps would be taken to have the relevant writ executed although no date was identified for that event to occur.

12. It may be seen then that Mr Constantinidis has been well and truly on notice for some months that some action was going to be taken. It does not appear that Mr Constantinidis has been proactive in relation to steps that he may seek to take to protect his own interests in these circumstances.

13. There is evidence before the Court that the Sheriff mailed, on 29 March 2017 to the Dural premises, a notice to vacate document. On 4 May 2017, a notice to vacate document was affixed to the Dural premises. The evidence before the Court is that on 4 May 2017, Mr Constantinidis spoke with Ms Challis by telephone and he was put on notice directly of what was intended to occur.

14. Today, the Court was contacted soon after lunch by Mr Beazley to say that an urgent application would be made for a stay of execution of the writ of possession scheduled, as I have said, tomorrow.

15. The Notice of Motion filed in Court this afternoon seeks that Mr Constantinidis be joined as a Third Defendant in the proceedings. I do not propose to make any order to that effect at this time. Whether he has any standing to be added as a party to these proceedings is an issue about which I presently have considerable doubts, given the state of the proceedings and the passage of time since their commencement.

16. The question then is whether Mr Constantinidis should be granted a stay of execution of the writ because he is a person directly affected by it, being the occupant of the premises at Dural where he has lived for some time.

17. There is some evidence, as I have said, of health difficulties on his part. Why it is that someone in his position would have waited this long before taking any action is difficult to understand. The Court views late applications for stays of execution of writs with some circumspection if the person making the application has not made an earlier application to the Court in circumstances where that may have been considered appropriate.

18. It is said here that Mr Constantinidis has only recently learnt of the appointment to execute the writ tomorrow. The evidence supports that proposition but, as I have said, he has had a long period of notice that this day was going to come and he has not been on the front foot to seek to protect his own interests.

19. There has been no grant of a stay with respect to the execution of this writ in the past. If there had been then, in my view, this application ought be rejected. However, this is the first application made and, hopefully, the last.

20. Mr Constantinidis is seeking the substantial indulgence of the Court in the circumstances as they now present themselves.

21. It has been said on behalf of the Plaintiff that there are a number of concerns. Firstly, the level of indebtedness exceeds $5.4 million. An internet valuation, as to which limited weight can be given, indicates an estimated value range for the Dural property of about $5 million to $6.7 million.

22. The Plaintiff does have an interest in the resolution of this matter without any significant delay, and thus the resistance to the present application is understandable.

23. Mr Beazley submits that there ought to be an opportunity for Mr Constantinidis to explore whatever rights he considers he has with respect to this property. Why that would be happening at this stage, and not before, is difficult to understand.

24. The more persuasive argument in support of the stay is the limited period of time that he has been on actual notice of tomorrow’s scheduled execution and his health issues. I make it entirely clear, however, that this factor which will see the grant of a stay today will not readily give rise to any further stay. This is effectively a form of hardship application which is (of its nature) a short-term application for a stay.

25. Mr Beazley has indicated that his client may wish to enter into negotiations with the Plaintiff for the purchase of the property. The grant of a stay will provide an opportunity for that, but it will have to be very focused because the expectation is that there will not be any open-ended process of a stay being extended in this case without exceptional, indeed, overwhelming reasons for doing so.

26. Having said all that, I am prepared to grant a stay on this occasion. The matter will come before me again on the next occasion and I will give directions for any further material upon which Mr Constantinidis proposes to rely to be filed and served.

27. In the meantime, it will be a matter for the Plaintiff to take such steps as it sees fit with respect to any rescheduling of an appointment to execute the writ of possession with respect to the Dural property.

28. I make the following orders:

1.     That the writ for possession of the property at 22 Derriwong Road, Dural, be stayed up to and including 5.00 pm on 30 May 2017.

2.     The proceedings are to be listed for hearing before me at 9.30 am on 30 May 2017.

3.     I direct Mr Constantinidis to file and serve, by 5.00 pm on 19 May 2017, any further affidavit or documentary material upon which he seeks to rely on the next occasion.

4.     If the Plaintiff wishes to file and serve any material itself with respect to these matters, the Plaintiff will have until 5.00 pm on Friday 26 May 2017 to do so.

5.    I reserve the question of costs of today.

6.   There ought be evidence on the next occasion that the relevant filing fee has been paid by Mr Constantinidis in accordance with the undertaking given.

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Decision last updated: 12 May 2017