National Australia Bank Limited v Sayed

[2019] NSWSC 1187

Supreme Court

New South Wales

Medium Neutral Citation:	National Australia Bank Limited v Sayed [2019] NSWSC 1187
Hearing dates:	22 August 2019
Date of orders:	22 August 2019
Decision date:	22 August 2019
Jurisdiction:	Common Law
Before:	Ierace J
Decision:	Notice of motion dismissed.
Catchwords:	CIVIL PROCEDURE – Application for stay of writ of possession
Cases Cited:	National Australia Bank Limited v Sayed [2019] NSWSC 653 National Australia Bank Limited v Sayed (No 2) [2019] NSWSC 1077
Category:	Principal judgment
Parties:	National Australia Bank Limited (Plaintiff/Respondent) Bilal Sayed (Defendant/Applicant)
Representation:	Counsel: G Lucarelli (Plaintiff/Respondent) In person (First Defendant/Applicant) M Frith (Solicitor) (Second Defendant)   Solicitors: Dibbs Barker Lawyers (Plaintiff) Robertson Saxton Osborne Lawyers (Second Defendant)
File Number(s):	2010/135614

Judgment

1. HIS HONOUR: The applicant, Bill Sayed, appears unrepresented before me, sitting as Duty Judge on a notice of motion filed yesterday seeking a stay on the execution of the writ of possession of a property by the sheriff’s officer. The respondent is National Australia Bank Limited (“the respondent”). There was also an appearance by a solicitor, Ms Frith, on behalf of the applicant’s former wife, Nicole MacArthur, although ultimately, it was not necessary for her to make any submissions.

2. The application is made in the context of proceedings that have been commenced in the Equity Division of this Court and a history of litigation dating back to around 2012. These originally arose from the default on a mortgage and proceedings by the respondent to recover outstanding debt through the sale of the mortgaged property as well as an additional property that had secured the debt.

3. On 16 April 2015, Harrison AsJ granted leave to the respondent to issue a writ of possession which was stayed pending the determination of a cross-claim brought by the applicant. The cross-claim was determined by McCallum J on 25 June 2019 in favour of the respondent: National Australia Bank Limited v Sayed [2019] NSWSC 653. The respondent then sought judgment for possession and the issue of a writ pursuant to the orders of Harrison AsJ.

4. On 26 July 2019, the matter came back before McCallum J who granted the writ of possession on the basis that it not be executed before 26 August 2019: National Australia Bank Limited v Sayed (No 2) [2019] NSWSC 1077. I understand that the sheriff’s officer has indicated the possession of the property will be taken on 12 September 2019. Her Honour indicated that execution would be delayed until 26 August to enable the applicant, if he so desired, to file an appeal against her judgment of 25 June 2019, and as well, if he desired to do so, to seek leave to appeal against the orders of Harrison AsJ in 2015.

5. The applicant has not filed an appeal against McCallum J’s judgment of 25 June 2019. He has said that he intends to do so, but he is waiting on the production of documents by the respondent pursuant to two notices to produce that he has had issued by the Court. It is not clear to me why that is an impediment to him filing an appeal.

6. The applicant informs me that he has filed a draft notice of appeal in the Court of Appeal in relation to the judgment of Harrison AsJ and has handed up an unstamped copy, which I accept to be a reliable copy. There are three proposed grounds on the draft notice of appeal, but they are undeveloped. There is not a supporting affidavit or other filed material that explains the basis of the grounds.

7. I think it is implicit in the judgment of McCallum J on 26 July 2019 that there was to be more than the bare grounds of appeal filed in which leave was to be sought in respect of the judgment of Harrison AsJ and that has not been done.

8. The applicant also indicated that a reason that he sought the stay on the writ of possession was to enable him to access the restrained property in order to remove his belongings. That involves the background history of this matter, to the extent that it includes a dispute between the applicant and his former wife who, together with their child, I understand to be the current occupants of the property, who will remain there until 26 August 2019.

9. The applicant said that a benefit of having the stay would be that he could then access the property to remove his possessions, if indeed it is ultimately possessed. It emerged that the respondent has indicated that it is prepared to provide supervised access to the applicant in order to facilitate him removing any property that he has on the premises. The applicant has made clear in response that that is not the extent of the basis on which he wants the writ stayed. Pursuant to his current proceedings in the Equity Division, the applicant anticipates that he will ultimately succeed in his action to overturn the writ of possession and the claim of the respondent.

10. I have come to the conclusion, as I have indicated to the parties, that the starting point of consideration of this application, and indeed the basis upon which it hinges, is the judgment of McCallum J on 26 July 2019, in particular, the contingency on which the writ was stayed. That is, in order to provide an opportunity for the applicant, if he wishes, to file the appeal in relation to her Honour’s judgment and the application for leave to appeal the judgment of Harrison AsJ.

11. Given that there has been no filing of appeal against McCallum J’s judgment and that there is no development of the proposed grounds of appeal, should leave be provided in respect of the judgment of Harrison AsJ, I consider that the writ should no longer be stayed. That is, that it may be executed after 26 August 2019. In so saying, I am mindful of the indication from the sheriff that possession will not be secured until 12 September 2019 and that provides an opportunity for the applicant to remove his possessions.

12. For the sake of completeness, I note that there are a number of orders that were sought by the applicant. I have referred to only one of them, but that I think, is the only order sought that warrants specific consideration. Accordingly, the notice of motion is dismissed.

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Decision last updated: 10 September 2019