National Australia Bank Limited v Sayed
[2019] NSWSC 1164
•06 September 2019
Supreme Court
New South Wales
Medium Neutral Citation: National Australia Bank Limited v Sayed [2019] NSWSC 1164 Hearing dates: 5 September 2019 Date of orders: 06 September 2019 Decision date: 06 September 2019 Jurisdiction: Common Law Before: Harrison J Decision: Mr Sayed’s notice of motion filed on 27 August 2019 is dismissed with costs.
Catchwords: POSSESSION – writ of possession – application to stay execution – where mortgagor concedes that security property should be sold – no utility in restraining the sale of the security property Category: Principal judgment Parties: National Australia Bank Limited (Plaintiff)
Bilal Sayed (Defendant)Representation: Counsel:
Solicitors:
G Lucarelli (Plaintiff)
Dentons (Plaintiff)
File Number(s): 2010/135614 Publication restriction: Nil
Judgment
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HIS HONOUR: These proceedings have a long and involved history, recorded in manifold decisions of the judges of this Court, to the details of which it is presently unnecessary to refer. A familiarity with these decisions is assumed but is not required.
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Mr Sayed moves the Court by notice of motion filed on 27 August 2019 for an order staying or alternatively setting aside a writ of possession of land in Gahans Lane, Woonona until a directions hearing on 23 September 2019 in the Court of Appeal or 12 September 2019 when the National Australia Bank proposes to enforce the writ or alternatively for a period of four months in order that Mr Sayed can “prepare the Woonona property for sale and list it as such with a real estate agent.” A similar application to stay the writ of possession was dismissed by Ierace J on 22 August 2019.
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The matter was argued before me at length, upon the basis that Mr Sayed contended that he had some prospect of succeeding to set aside the decision of Harrison AsJ published as long ago as 16 April 2015 when her Honour made an order for possession in favour of the Bank and granted leave for the issue of the writ now in question: see National Australia Bank Limited v Sayed (No 4) [2015] NSWSC 420. Mr Sayed has commenced proceedings in the Court of Appeal seeking leave to appeal against her Honour’s decision more than four years out of time.
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However, it emerged during the course of the hearing before me that Mr Sayed in fact had no interest in preventing the sale of the property, which he conceded was inevitable. Indeed, upon questioning from me, Mr Sayed ultimately confessed the true basis of his application was to attempt to secure the opportunity to sell the property himself, rather than to have the Bank do so in accordance with the terms of its security. The following portions of the transcript of the proceedings before me should be noted in this respect:
“HIS HONOUR: Just out of interest, Mr Sayed, do you concede that you owe the Bank a million odd dollars?
DEFENDANT: No.
HIS HONOUR: Why do you not owe them that money?
DEFENDANT: The Bank was entitled under the judgment of Harrison AsJ, they were entitled to $700,000 plus interest. I say they are entitled to interest from April 'til October until they gave me possession.
HIS HONOUR: How much money do you owe them?
DEFENDANT: It may be 720,000.
HIS HONOUR: Have you offered them that money?
DEFENDANT: They didn't give me the chance.
HIS HONOUR: Standing here today, do you offer to pay them that money tomorrow?
DEFENDANT: Yes.
HIS HONOUR: Why haven't you paid it to them already?
DEFENDANT: They didn't give me a chance, they filed a Writ of Possession. They wanted a million plus. I've spent the last week, week and a half at the property, I've taken away a tonne and a half of rubbish
HIS HONOUR: Don't worry about that. Do you say that relates to the sale price?
DEFENDANT: I'm preparing the property for sale. If the Bank gave me the opportunity to prepare the property for sale, list it with an agent, I would do that. The moneys that would be obtained from the sale
HIS HONOUR: You accept, do you, that the property has to be sold?
DEFENDANT: Yes.
HIS HONOUR: So what are we here arguing about?
DEFENDANT: Well, it has to be sold, I don't want the property anymore.
HIS HONOUR: I understand that. Why am I here listening to all of this if the property is to be sold; what are we arguing about?
DEFENDANT: I want to be the one doing the selling, not the Bank.”
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As will be seen, Mr Sayed has conceded that his argument with the Bank related in effect to the proper calculation of the amount alleged to be owing to it rather than with the preservation of any particular proprietary interest he may be able to salvage by restraining the sale. Clearly enough, the taking of accounts as between Mr Sayed and the Bank is not something that informs the need to prevent or postpone the sale. Moreover, to the extent that there appears to be some doubt about the current market value of the property, its sale would appear to be the only certain way of determining the precise nature and extent of the respective financial interests of the Bank and Mr Sayed.
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In these circumstances, there is clearly no utility in granting the relief that Mr Sayed seeks. Put another way, it would be futile to restrain the Bank’s realisation of its security pending the outcome of Mr Sayed’s proceedings in the Court of Appeal. Indeed, I am at a loss to understand why Mr Sayed now wishes to challenge her Honour’s decision of so long ago when he does not dispute that the property must be sold one way or the other.
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It therefore becomes unnecessary to assess Mr Sayed’s prospects of success in the Court of Appeal as a matter affecting the exercise of my discretion to grant or to refuse him the relief that he seeks. It does appear to me that Mr Sayed’s chances of being granted leave to appeal so long out of time must be somewhat questionable, but that opinion is not one that I have taken into consideration for present purposes.
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Any interference with or postponement of the Bank’s current plans to realise its security is in the bests interests of neither the Bank nor Mr Sayed. It is not in the Bank’s interests inasmuch as the evidence reveals that the amount claimed by it as due and owing upon its security is rapidly approaching, if it has not already overtaken, the current market value. There is in that sense both real and presumptive prejudice to the Bank if the relief is granted. Nor is it in Mr Sayed’s interests for the obvious reason that his putative indebtedness to the Bank continues to accrue with the passage of every day.
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Accordingly, in the exercise of my discretion, I decline to stay the writ of possession. I do not consider that I should entertain the application to set it aside, having regard to the currency of Mr Sayed’s proceedings in the Court of Appeal. I reiterate that, having regard to Mr Sayed’s avowed indifference to the issue of whether or not the property should be sold at all, there is no proper legal basis upon which the Bank should be retrained from executing its right to recover possession of the property in anticipation of the exercise of its power of sale.
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I make the following orders:
Mr Sayed’s notice of motion filed on 27 August 2019 is dismissed with costs.
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Decision last updated: 06 September 2019
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