Pascoe v Elcheikh
[2014] NSWSC 273
•18 March 2014
Supreme Court
New South Wales
Case Title: Pascoe v Elcheikh Medium Neutral Citation: [2014] NSWSC 273 Hearing Date(s): 17 & 18 March 2014 Decision Date: 18 March 2014 Jurisdiction: Common Law Before: Davies J Decision: Defendant's Notice of Motion filed 14 March 2014 is dismissed.
Catchwords: REAL PROPERTY - mortgages - writ of possession - stay sought to set aside default judgment - no arguable defence - inaction by Defendant since served with process in July 2012 - earlier stay granted - no action by Defendant - no offer to pay any part of debt - stay refused Legislation Cited: Strata Schemes Management Act 1996 Cases Cited: GE Personal Finance v Smith [2006] NSWSC 889
The Owners Strata Plan 50276 v Thoo [2013] NSWCA 270Category: Interlocutory applications Parties: Scott Darren Pascoe (First Plaintiff)
Andrew John Scott (Second Plaintiff)
Bassem Elcheikh (Defendant)Representation - Counsel: Counsel:
M Shafiq (Plaintiff)
A Moutasallem (For the Defendant on 17 March 2014)
M Mandoh (For the Defendant on 18 March 2014)- Solicitors: Solicitors:
J S Mueller & Co (Plaintiff)
Danawe Lawyers (Defendant)File Number(s): 2013/244176
JUDGMENT
The Defendant applies by Notice of Motion filed 14 March 2014 seeking a stay of execution on a writ of possession which is due to be executed tomorrow.
The proceedings were first before me yesterday. I stood them over until 2 o'clock today on the basis that the Defendant would have to persuade me that he had some arrangement with the Trustee in bankruptcy to pay out the debt that is due to the body corporate and the other expenses of the Trustee.
The judgment arises in this way: The Defendant is the owner of a home unit in a block of home units at 17-21 Stanley Street, Bankstown. He declined to pay strata levies on the basis that he considered the body corporate had failed to upkeep the common area in a way that he said affected his property.
The body corporate took proceedings against him in the Local Court and on 9 August 2012 obtained a default judgment against him for those levies.
The Court record discloses that the Defendant was served with the Statement of Claim on 8 July 2012. Ultimately when the judgment was not satisfied, the body corporate served a bankruptcy notice and obtained a sequestration order against the Defendant on 7 March 2013. That was not defended.
The Trustee in Bankruptcy became registered as the proprietor of the unit formerly owned by the Defendant. The Trustee then brought proceedings in the Possession List of this Court to obtain possession of the property. The Statement of Claim was served on the Defendant on 8 September 2013.
I observe in passing that Statements of Claim in the possession list obtain a cover sheet that contains an important notice telling Defendants what they must do in sixteen different languages, including Arabic. I am told, however, that the Defendant has very little English and does not read Arabic.
Nevertheless, the Defendant did nothing about the service of the Statement of Claim and a default judgment for possession was entered against him on 30 October 2013.
Ultimately, a writ of possession issued and the Defendant was due to be evicted from the premises earlier this year.
On 4 February 2014, he sought and obtained a stay of the writ of execution for a period of one week. He swore an affidavit in support of that application where he said that he did not file a defence because his first language was Arabic and he cannot read or write in English. He said he spoke minimal English and understood some spoken English. I note that he does not say in that affidavit that he is unable to read Arabic, although that is what I have now been informed.
He also sought in the application for a stay in February that the judgment against him should be set aside. Although he was granted a stay for a period of a week, it does not appear he took any steps either to set aside the judgment in the Local Court or the judgment in this Court. He was still maintaining in his affidavit in support of that stay that he did not owe the strata levies because he said the strata committee did not do their job in accordance with their contract.
He also claimed hardship in having to move out of the property with six children, aged between four months and 17 years, and in circumstances where he and his partner were unemployed, that their only source of income was Centrelink payments and that he suffered from depression. There is no evidence that he took any steps to find alternative accommodation during the period of that stay.
A further eviction was organised to take place, as I have said, on 19 March. It was in those circumstances where the applicant brought the present application for a further stay. On this occasion he also asked that the judgment against him be set aside and that he be given time to set aside the Local Court judgment.
As I have said, the matter came before me yesterday when he was represented by a barrister, Mr Moutasallem. The matter was argued and it appears to have been accepted there was no defence in fact to the claim made in the Local Court for the levies, nor for the claim for possession in this Court. The matter seems to me clearly to be established by the Court of Appeal's decision in The Owners Strata Plan 50276 v Thoo [2013] NSWCA 270 at paras [137], [138] and [210].
The only rights the Defendant had was to make application under the Strata Schemes Management Act 1996 for an adjudicator to determine his grievances as far as the body corporate was concerned.
Yesterday I raised the issue of payment of the outstanding levies because ultimately the application yesterday was put on the basis of hardship to the Defendant and an indulgence to him by the Court. I indicated that I would expect some arrangements to be made for the payment of the strata levies as a condition of any further stay.
I was informed by Mr Moutasallem that the Defendant was willing to pay the Trustee the sum of $11,000. I asked where that money was to come from and I was told that it was from people that the Defendant knew, his family and friends.
At the end of the argument I said this:
Mr Moutasallem, all I'm prepared to do is this. If this eviction is scheduled for Wednesday, you can have until 2 o'clock tomorrow afternoon to come back with information that persuades me that you have got some arrangement with the Trustee about how much they will accept to pay out the debts that are owed, and how your client intends to get the money to do that, and when it will be done. And if I'm not satisfied about that, I'm simply going to refuse the stay. It is only being done out of an indulgence to your client because I think he has no legal right to get a stay. He has no defence as far as I can see to the judgment that he wants to set aside.
The Defendant has come along today with new representation and is asking for a further period of up to four weeks to stay in the property so that he can "get his affairs into order". No definite arrangement has been put forward about what he intends do in that time or what affairs are to be put in order.
He claimed hardship, as I have noted in the application on the 4th of February, and the difficulty at that time of finding alternative accommodation.
It does not appear the Defendant has done anything since that time to find alternative accommodation and that appears to be because right up until now, he has refused to accept that he had an obligation to pay the levies and that he had no defence to the claim. So much is apparent from the affidavit he swore in support of the present application on 14th of March 2014.
It does not now appear from what I'm told that he has the wherewithal or the ability to pay any money to the Trustee, let alone the $11,000 that was first spoken of yesterday.
In the absence of any definite evidence about what is to happen if a further stay is granted, it does not seem to me appropriate that a further stay should be granted. The Defendant has done nothing about this matter for a period of some 21 months when he was first served with the Local Court Statement of Claim. He has had ample opportunity to do something and has failed to do it despite having had lawyers provide advice to him in the matter.
I do not see what benefit will be achieved by the granting of any further stay in the matter. That is the more so when no offer is being made to pay any money to the Trustee when the levies have been outstanding at least since 5 April 2012.
Johnson J pointed out in GE Personal Finance v Smith [2006] NSWSC 889 at [24] where an indulgence is sought for a stay, particularly on the basis of hardship, the fact that no moneys have been paid to the Plaintiff by the person seeking the stay will be a significant factor affecting the discretion to grant a further stay.
In those circumstances, the Defendant's Motion is dismissed.
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