National Australia Bank Limited v Mary Rose Salubre

[2023] NSWSC 319

Supreme Court

New South Wales

Medium Neutral Citation:

National Australia Bank Limited v Mary Rose Salubre [2023] NSWSC 319

Hearing dates:

31 March 2023

Date of orders:

31 March 2023

Decision date:

31 March 2023

Jurisdiction:

Common Law

Before:

Elkaim AJ

Decision:

1) On the notice of motion filed by the defendant on 23 March 2023, a stay in respect of the eviction scheduled for 3 April 2023 is refused.

2) The balance of the notice of motion is stood over to 20 April 2023.

3) The defendant has leave to file a Notice of Grounds of Defence prior to 20 April 2023.

4) The defendant is to pay the plaintiff’s costs of today’s hearing

5) The balance of the costs recoverable in the notice of motion, are stood over to be decided together with the remainder of the notice of motion.

Catchwords:

APPLICATION FOR STAY – No draft defence – Imminent eviction – One of three properties only affected

Cases Cited:

GE Personal Finance Pty Limited v Smith [2006] NSWSC 889

Dai v Zhu 2013 NSWCA 412

Category:

Procedural rulings

Parties:

National Australia Bank Limited Pty Ltd (Plaintiff)
Mary Rose Salubre (Defendant)

Representation:

Solicitors:
(Plaintiff) Dentons Australia Pty Ltd
(Defendant) Di Lizio and Associates

File Number(s):

2019/00393388

Publication restriction:

Nil

Choose an item.

JUDGMENT

1. The plaintiff, a bank, commenced proceedings against the defendant in December 2019.

2. The plaintiff sought writs of possession for three properties and sums of money allegedly owed by the defendant to the plaintiff.

3. The origin of the dispute lies in loan agreements made in March 2015 and April 2015. The defendant’s obligations were secured by mortgages over the three properties.

4. The plaintiff alleged that the defendant was in default of her obligations under the agreements giving rise to its entitlement to seek possession of the properties.

5. The proceedings filed in 2019 lapsed due to lack of service but were reinstated by orders made on 11 October 2021. The defendant was served with the statement of claim on 9 February 2022.

6. A defence to the statement of claim has not been filed to date.

7. On 12 August 2022 the plaintiff obtained orders for default judgment including possession of the three properties. Writs of possession were issued on 23 August 2022. The evictions were scheduled for 18 and 19 October 2022.

8. On 14 October 2022 the defendant filed a notice of motion requesting an urgent stay of the writs of possession. At about the same time the defendant made a complaint to the Australian Financial Complaints Authority (AFCA) about the conduct of the plaintiff.

9. On 17 October 2022 the plaintiff requested the NSW Sheriff to not go ahead with the evictions. The evictions were placed ‘on hold’ pending resolution of the complaint.

10. The complaint file was ultimately closed causing the plaintiff, on 9 February 2023, to successfully have the stay application dismissed.

11. The three properties I have referred to above are:

1. Unit 4, Rosehill, NSW.

2. Unit 12, Rosehill, NSW.

3. Lidcombe, NSW.

12. The eviction at Unit 12 is now scheduled for 9am on 3 April 2023. The eviction at Lidcombe is scheduled for 21 April 2023.

13. On 23 March 2023 the defendant filed a notice of motion seeking a stay of the evictions. The matter was referred to me, as duty Judge, because of the urgency arising from the scheduled eviction on 3 April 2023.

14. The hearing before me today was concerned only with the eviction scheduled for 3 April 2023. The stay was sought because the defendant says that she has a defence to the plaintiff’s proceedings. In addition, she wishes to pursue a cross-claim against the plaintiff.

15. The conditions under which a stay may be granted in circumstances such as the present were set out by Johnson J in GE Personal Finance Pty Limited v Smith [2006] NSWSC 889 at [13]:

“Secondly, the basis upon which the stay application is made is significant. As paragraph 20 of the Practice Note makes clear, there are three common circumstances advanced on a stay application:

(a) where the Defendant indicates that the proceedings are to be defended, a draft Notice of Grounds of Defence should be provided and the Defendant ought be in a position to make submissions concerning the merits of the proposed grounds;

(b) where the Defendant indicates that the loan is to be refinanced, proof of steps undertaken to refinance will be required on the application;

(c) where the Defendant indicates that the subject property is to be sold, copies of agent sale agreements, a contract for sale of the property, advertisements and other documentary evidence ought be provided”.

16. The above three circumstances are not exclusive but do provide a useful guide in the present matter. Circumstances (b) and (c) not applicable here. As to (a) a draft defence has not been provided although submissions were made as to what the defence might be.

17. The defendant submitted that the following history was relevant to the identification of a defence: in early 2020 the defendant, with others, was involved in negotiations to purchase a nursing home. To this end, finance in the order of $120 million was required. It was to be obtained from the plaintiff but with the necessity for there to be an initial bridging loan to be provided by a third party.

18. If the $120 million was made available, then it would have been used to pay off the outstanding loans to the plaintiff which are the subject of these proceedings. My initial reaction to this assertion was that there was no connection between the financing of the nursing home and the loans to the defendant. It was conceded that there was no correspondence between the plaintiff and the defendant to this effect.

19. The closest that the defendant came to establishing the connection was to tender the minutes of a meeting held on 12 January 2020 (Exhibit A) at which a managerial employee of the plaintiff was present. Paragraph 25 of the minutes suggests a possible arrangement to the above effect.

20. The proposed purchase of the nursing home did not proceed because, according to the defendant, the plaintiff did not provide necessary documents as required in a timely fashion. The defendant goes so far as to assert that the conduct of the plaintiff, in relation to the financing of the nursing home, was fraudulent. This would be the basis of the cross-claim.

21. As I have observed above, the statement of claim was served on 9 February 2022. The minutes making up Exhibit A are dated 12 January 2020. All other material relating to the proposed defence has been available for some time. Despite this, no draft defence has ever been prepared.

22. It was pointed out that the sale of the unit may or may not extinguish the debt owed to the plaintiff. I do note that the overall value of the three properties exceeds the total monies owed. Nevertheless, as far as Unit 12 is concerned there is a real risk that the delay will increase the debt and lessen the chance of the debt being fully recovered.

23. The defendant’s current notice of motion was originally listed for hearing on 20 April 2023. It seems to me that the approach I should take is to refuse to stay the eviction, primarily because despite the passage of a great deal of time no draft defence has ever been prepared. This is not to say that there may not be a defence, but rather that the ingredients of the defence put to me today were gathered together in a last-minute fashion that should have occurred some time ago.

24. I accept that, as stated in Dai v Zhu [2013] NSWCA 412 at [92], I only have to decide if there is an arguable defence without making any findings on its full merits. However, the defendant, despite the passage of time, has not come close to an adequate description of the defence, whether in the form of a draft defence or otherwise.

25. I do note that there were times when the defendant was self-represented. Nevertheless, her current lawyer was her lawyer in 2020 and there is no reason why she could not have obtained legal assistance earlier.

26. Although I will refuse the application, the defendant’s position is not entirely lost because it is only the one unit which is susceptible to the eviction next week. The other unit has no eviction date. The Lidcombe property is not to be possessed until the day after the hearing set aside for the defendant’s notice of motion.

27. The defendant therefore has ample time in which to prepare a draft defence, perhaps even file a defence, to be utilised in pursuing the balance of the notice of motion. The defendant will then be in a better position to stay the eviction in respect of the Lidcombe property.

28. I make the following orders:

1. On the notice of motion filed by the defendant on 23 March 2023, a stay in respect of the eviction scheduled for 3 April 2023 is refused.

2. The balance of the notice of motion is stood over to 20 April 2023.

3. The defendant has leave to file a Notice of Grounds of Defence prior to 20 April 2023.

4. The defendant is to pay the plaintiff’s costs of today’s hearing.

5. The balance of the costs recoverable in the notice of motion are stood over, to be decided together with the remainder of the notice of motion.

Decision last updated: 31 March 2023