National Australia Bank Limited v Sayed (No 2)

[2019] NSWSC 1077

Supreme Court

New South Wales

Medium Neutral Citation:	National Australia Bank Limited v Sayed (No 2) [2019] NSWSC 1077
Hearing dates:	26 July 2019
Date of orders:	26 July 2019
Decision date:	26 July 2019
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Order that upon the issue of any writ of possession, the writ not be executed before 26 August 2019.
Catchwords:	MORTGAGES AND SECURITIES – mortgages –duties, rights and remedies of mortgagee – possession – application for writ of possession delayed by hearing and determination of cross-claim by mortgagor – requirement for mortgagee to file affidavit identifying persons in occupation of the land at a certain time – occupant informing court that the affidavit was inaccurate but not otherwise opposing grant of writ
Category:	Procedural and other rulings
Parties:	National Australia Bank Limited (plaintiff/cross-defendant) Bilal Sayed (first defendant/cross-claimant) Nicole Susan Macarthur (second defendant)
Representation:	Counsel: G Lucarelli (plaintiff/cross-defendant) First defendant/cross-claimant self-represented (via telephone link) M Twyford (solicitor for the second defendant)   Solicitors: Dibbs Barker (plaintiff/cross-defendant) Robertson Saxton Osborne Lawyers (second defendant)
File Number(s):	2010/135614
Publication restriction:	None

Judgment

1. HER HONOUR: These are proceedings for possession commenced by National Australia Bank Limited. On 16 April 2015, Associate Justice Harrison published a judgment and granted leave to the bank to issue a writ of possession. However, the bank subsequently agreed to stay its hand in taking that step pending the determination of a cross-claim brought by Mr Sayed against the bank.

2. I determined that cross-claim in a judgment published on 25 June 2019, following which the bank filed a notice of motion seeking judgment for possession and the issue of a writ pursuant to the orders of Associate Justice Harrison. That material was received by a solicitor now acting for Mr Sayed's ex-wife, Ms Nicole Macarthur, who sought an opportunity to be heard as to the motion. At that point the proceedings were referred to be listed before me, evidently because I had determined the cross-claim.

3. I have this morning heard from Ms Macarthur's solicitor, Mr Twyford. He was concerned, not inappropriately, as to a matter arising from the terms of the affidavit filed on behalf of the bank in support of the notice of motion. He sought time to put on evidence on that issue but the proceedings were listed before he had an opportunity to do so. In short, the concern was that the affidavit does not comply with the rules or else is inaccurate in its identification of the persons in occupation of the property of which possession is sought.

4. The affidavit states that, as at 24 May 2010, presumably a date chosen by reference to the requirements of rule 39.3 of the UCPR, no persons other than the parties to the proceedings were in occupation of the property. Mr Twyford has informed the Court that the true position is that there is, in addition to Mr Sayed and Ms Macarthur, a third person affected by the application, being their son who is severely autistic. According to the information provided by Mr Twyford from the bar table, the son resides at the property with Ms Macarthur.

5. That said, Ms Macarthur has also indicated that she does not oppose the steps sought to be taken by the bank to obtain possession of the property, provided she is allowed thirty days to enable her to vacate the premises in an orderly way. Without consenting to an order in those terms, the bank has indicated that it does not oppose that course and, in my view, that is appropriate.

6. Separately, Mr Sayed has been heard this morning appearing by telephone from his place of residence in Queensland. Mr Sayed has served a notice of intention to appeal against my judgment. The material date, as already indicated, was 25 June 2019. Having served a notice of intention to appeal, Mr Sayed would have a period of three months from that date to commence the appeal. However, he has indicated that he wishes also to seek leave to appeal against the judgment of Associate Justice Harrison published on 16 April 2015. It is in that appeal that the Court of Appeal would have authority to grant any further stay of execution of the writ.

7. In those circumstances, I have indicated to Mr Sayed that the preferable course would be for him to commence both the appeal and the application for leave to appeal within the 30 day period of grace I propose to allow in respect of the execution of the writ. Whether he takes that step is a matter for him, but I am not otherwise persuaded that there is any warrant for granting any further stay in respect of the writ in the absence of any articulation of the proposed grounds of appeal against either judgment.

8. Separately, Mr Lucarelli, who appears for the bank, has informed me that, in any event, the registry has made requisitions in respect of the notice of motion seeking the issue of a writ and judgment for possession.

9. For those reasons, the only order I think it is necessary or appropriate to make today is that, upon the issue of a writ, if that occurs, the writ not be executed before 26 August 2019.

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