National Australia Bank Ltd v C and O Voukidis Pty Ltd (No. 2)
[2014] NSWSC 668
•20 May 2014
Supreme Court
New South Wales
Medium Neutral Citation: National Australia Bank Ltd v C & O Voukidis Pty Ltd (No. 2) [2014] NSWSC 668 Hearing dates: 20 May 2014 Decision date: 20 May 2014 Jurisdiction: Common Law Before: Campbell J Decision: (1)The taking of any step in furtherance of the execution of a writ of possession in respect of the property known as X XXXXX XXXXX , XXXXX XX is stayed until 5pm on Thursday 22 May 2014, upon the undertaking of the first defendant to pay any fees wasted by reason of this order.
(2)I direct that order (1) may be entered forthwith and that the first defendant may serve a copy of the order by fax or email upon the Sheriff of New South Wales.
I make the following supplementary orders:
(3)Grant leave to the first and fourth defendants to file a motion seeking a stay of execution today which motion may be made returnable before me at 10am on Thursday 22 May 2014.
(4)The applicants to lodge any evidence in support of the application in my chambers by 4.30pm today.
(5)The plaintiff to lodge any evidence in reply with my chambers by 4.30pm tomorrow 21 May 2014.
Catchwords: REMEDIES - stay for a writ of possession - whether balance of convenience favours granting a short stay Category: Interlocutory applications Parties: National Australia Bank Ltd (Plaintiff)
C & O Voukidis Pty Ltd (First Defendant)
Olga Voukidis (Fourth Defendant)Representation: Counsel: P Reynolds (Plaintiff)
P Afshar (First Defendant)
Mr D Ash (Fourth Defendant)
Solicitors: Gadens Lawyers (Plaintiff)
JBT Lawyers (First Defendant)
Carneys Lawyers (Fourth
Defendant)
File Number(s): 2012/00082867
EX TEMPORE Judgment
On 3rd April 2014 I gave summary judgment for possession to the plaintiff bank in respect of two properties. I also gave leave for the bank to apply for the issue of a writ of possession and a writ has been issued in respect of what I referred to in my judgment as the "Burwood property", the address of which is XXXXX XXXXX XXXX.
The matter was referred to me for directions today by the Possessions List Judge, Davies J, to make directions in relation to an application for a stay of the writ foreshadowed by the first defendant, C & O Voukidis Pty Ltd.
When the matter was called this morning it was indicated to me that the first defendant was seeking an interim stay until I could deal with the matter and the earliest I can reasonably deal with it is Thursday of this week.
The facts, which are set out in the affidavit of Ms Birkett, solicitor, and Ms O'Donohoe, solicitor, appear to be that the sheriff's office was proposing to personally serve a notice of eviction today. I interpolate that because Mr Afshar of Counsel, has not been able to get instructions over the telephone, I am unaware of whether the sheriff has yet served a notice of eviction. If so the exercise of any power on my behalf would be an exercise in futility.
The background has really been relayed to me by counsel from the bar table. It seems that the current tenant of the Burwood property has made a good offer to purchase the property. Obviously an unforced sale of the property would be in the interest, not only of the registered proprietor, but also of the bank.
Although my judgment is a matter of public record and indeed has been published on Caselaw New South Wales for anyone to read, who might be interested, it appears that the proposed purchaser is unaware that I have given the bank judgment for possession.
The first defendant is concerned that this is information capable of affecting the price that may be offered by the proposed purchaser. I think that is manifestly correct. Although I accept the argument of Mr Reynolds that it is not clear how it might affect the price. Certainly it possibly could diminish the offer. But given that there is no real logic to the real estate market, if the purchaser is keen, the knowledge that the bank is about to intervene may enhance the price. After all, that is how real estate sales are often effected; by the knowledge that there is another interested party increasing the ardour of a proposed purchaser.
However that may be, it seems to me that there is a possibility that the service of the notice of eviction might cause the loss of the sale, which would be detrimental, as I see it, not only to the first defendant, but also to the bank. Although I fully appreciate that the bank wishes to exercise its legal rights and is entitled to do so, all that is being asked at the moment is a stay for two days until Thursday and I think the balance of convenience favours granting the stay until that time. I order:
(1) The taking of any step in furtherance of the execution of a writ of possession in respect of the property known as X XXXXX XXXXX XX, XXXXX XX is stayed until 5pm on Thursday 22 May 2014, upon the undertaking of the first defendant to pay any fees wasted by reason of this order.
(2) I direct that order (1) may be entered forthwith and that the first defendant may serve a copy of the order by fax or email upon the Sheriff of New South Wales.
I make the following supplementary orders:
(3) Grant leave to the first and fourth defendants to file a motion seeking a stay of execution today which motion may be made returnable before me at 10am on Thursday 22 May 2014.
(4) The applicants to lodge any evidence in support of the application in my chambers by 4.30pm today.
(5) The plaintiff to lodge any evidence in reply with my chambers by 4.30pm tomorrow 21 May 2014.
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Decision last updated: 30 May 2014
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