National Australia Bank v Savage (No. 2)

[2013] NSWSC 1927

Supreme Court

New South Wales

Medium Neutral Citation:

National Australia Bank v Savage (No. 2) [2013] NSWSC 1927

Hearing dates:

3 December 2013

Decision date:

03 December 2013

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

As against the second defendant:

(1) Judgment for possession of the whole of the land comprised in Certificate of Title, Folio Identifier 39/xxx (formerly 1/xx) and known as xx Byng Street, Orange in the State of New South Wales.

(2) Judgment for the possession of the whole of the land comprised in Certificate of Title, Folio Identifier 2/xx (formerly 7/xx) and known as "Willapines" Molong Road, Orange (also known as 'Willawong' Molong Road, Orange) in the State of New South Wales.

(3) Leave to issue a writ of possession to enforce the judgment referred to in paragraphs (1) and (2) above.

(4) Order the defendant to pay the plaintiff's costs of the proceedings.

Catchwords:

PRACTICE AND PROCEDURE -application for stay of writ of possession -hardship -no basis for stay -practical exigencies preventing execution of writ in any event

Legislation Cited:

Civil Procedure Act 2005, s 67

Cases Cited:

GE Personal Finance Pty Limited v Smith [2006] NSWSC 889
National Australia Bank Limited v Savage [2013] NSWSC 1718

Category:

Interlocutory applications

Parties:

National Australia Bank Ltd (Plaintiff)
Matthew Ronald Savage (First Defendant)
Lisa Margaret Savage (Second Defendant)

Representation:

Counsel:
E Birkett (Solicitor) (Plaintiff)
D Macfarlane (Solicitor) (Defendants)
Solicitors:
Gadens Lawyers (Plaintiff)
Riley Gray-Spencer Lawyers (Defendants)

File Number(s):

2011/45466

Publication restriction:

Nil

Judgment

Introduction

1. The second defendant applied for a stay until 31 January 2014 of orders for possession of a residential property in Orange and a rural property just outside of Orange that I proposed to make against her today. I made such orders on 21 November 2013 against the first defendant, her husband and co-owner of both properties. The orders made against the first defendant include an order that there be leave to issue writ of possession to enforce the judgment for possession.

1. Mr Macfarlane, who appeared on behalf of Mrs Savage, relied on her unsworn affidavit dated 3 December 2013. Mr Macfarlane informed me from the bar table that, although the affidavit has not formally been sworn, it has been authorised by his client, who lives in Orange. In those circumstances I treated the affidavit as if it had been sworn.

1. Mrs Savage deposed to the difficulties of finding alternate accommodation over the Christmas/January period. She and her husband have been living in the house for a considerable length of time, they have a son who still lives with them there and two daughters who study interstate and abroad and reside with them in the Orange property over the Christmas holidays.

1. Mrs Savage deposed to attempts she has made to locate alternative housing and the difficulties she has encountered having regard to the time of year and the circumstance that properties do not generally become available until mid to late January. She has also referred to the difficulty of finding alternative housing having regard to the presence of the mines and the workers who work in those mines, which has a tendency to inflate the rents of local properties which might otherwise be available for Mrs Savage and her family. She also deposed to other obstacles to her search for alternative accommodation that include: her commitments as a school teacher at the end of term and the need to save money for removal of the family's possessions, a bond on the rental house and connection of utilities.

1. One of her daughters is home from her college in the USA and requires some dental treatment. The daughter had her wallet stolen, which will require Mrs Savage to attend Sydney on more than one occasion with associated cost and expense. Mrs Savage herself has been suffering from a vertigo illness for some months, which causes her to lose some sense of balance and she also experiences spinning sensations from time to time. She does not have the money for moving costs and her family's medical expenses. She deposed that it is impossible for her to save sufficient funds before the end of January.

1. She deposed that a combination of all of these factors make it impossible for her to meet all practical requirements necessary to move from her family home before 31 January 2014 and on that basis she seeks a stay of the writ of possession until that date.

1. Ms Birkett, who appears on behalf of the National Australia Bank, pressed for the orders that were made against Mr Savage to be made today against Mrs Savage. She submitted, however, that the writ will not be issued until mid to late January because of the time of year and the other demands on the Sheriff's Office in Orange.

1. Ms Birkett has referred me to the decision of Johnson J in GE Personal Finance Pty Limited v Smith [2006] NSWSC 889, in which his Honour considered the circumstances in which it might be appropriate for the Court to grant a stay of a writ of possession. At [13], his Honour listed the bases which would commonly form the basis of a stay: first, where proceedings are to be defended and the draft notice of defence has been prepared; secondly, where the defendant indicates that the loan is to be refinanced; and thirdly, where the defendant indicates that the subject property is to be sold.

1. Justice Johnson said that there could be no reasonable expectation of an extended stay solely on the grounds of hardship grounds only. At [22], his Honour said:

"If it is inevitable that the Plaintiff will obtain possession of the property for the purposes of exercising the power of sale, then it will be necessary for the Defendant to vacate the property."

1. I note that the power conferred on me by s 67 Civil Procedure Act 2005 to stay any proceedings until a specified day is not relevantly constrained except by the rules of court and therefore it would be open to me, subject to relevant considerations, to grant the stay for which Mrs Savage applies.

1. In the instant case the predicament in which Mrs Savage finds herself is the result of financial imprudence by her husband, who has been declared bankrupt. One can sympathise with anyone who is required to leave their home of many years, particularly one in which they have brought up their children and to which they are attached in an emotional and practical sense. Nonetheless, the bank is entitled to judgment for possession for the reasons I have given in the judgment I handed down in this case, National Australia Bank Limited v Savage [2013] NSWSC 1718. I am not satisfied that it would be appropriate to grant a stay of these orders on the ground of hardship.

1. It will be inconvenient whatever time Mrs Savage has to move her family and the matters in her draft affidavit do not persuade me that I should grant a stay of the writ of possession, since they would appear to me the usual difficulties which would be suffered by anyone in her position. Furthermore, given the indication that the writ will not be executed in any event until mid January I do not see any reason to grant the stay sought by Mrs Savage.

1. Accordingly the orders which I made against the first defendant on 21 November 2013 will be made as against the second defendant, that is orders 1, 2, 3 and 4. I note in order 3 that order 3 reads "leave to issue a writ of possession to enforce the judgment referred to in paras (a) and (b)". This should be corrected to make "judgment" plural and to refer to "(1) and (2)" instead of "(a) and (b) above."

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Decision last updated: 18 December 2013