Pilato v Stanizzo (No 2)

[2024] NSWSC 442

Supreme Court

New South Wales

Medium Neutral Citation:

Pilato v Stanizzo (No 2) [2024] NSWSC 442

Hearing dates:

23 April 2024

Date of orders:

23 April 2024

Decision date:

23 April 2024

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Stay the execution of a writ of possession until close of business on 6 May 2024.

2. Liberty to apply on 2 days’ notice.

Catchwords:

LAND LAW – possession of land – judgment given in favour of bankruptcy trustee against bankrupt – where bankrupt has commenced proceedings in the Federal Circuit and Family Court challenging the inclusion of the land as property divisible amongst creditors – stay sought on writ of possession pending determination of bankruptcy proceeding

Legislation Cited:

Bankruptcy Act 1966 (Cth) s 116

Duties Act 1997 (NSW) s 304

Uniform Civil Procedure Rules 2005 (NSW) r 14.28

Cases Cited:

Pilato v Stanizzo [2024] NSWSC 350

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Frank Lo Pilato (Plaintiff)
Vincent Francis Stanizzo (Defendant)

Representation:

Counsel:
A Jordan (Plaintiff)
A Berriman (Defendant)

Solicitors:
Oliveri Lawyers (Plaintiff)
Russoniello Lawyers (Defendant)

File Number(s):

2023/357373

Publication restriction:

Nil

Judgment

1. On 4 April 2024 I delivered judgment striking out a defence by the defendant pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) and giving judgment for possession of the land at 19 Piece Crescent, Balgownie: Pilato v Stanizzo [2024] NSWSC 350. I stood the proceedings over to today for the hearing of a notice of motion which I had granted leave nunc pro tunc to file by the defendant seeking a stay of the judgment for possession until the final determination of the Federal Circuit and Family Court of Australia proceeding between the plaintiff and the defendant herein.

2. The application for a stay was seemingly put on two bases today. The first was by reason of the proceeding in the Federal Circuit and Family Court. That proceeding concerns what property is divisible amongst creditors under the Bankruptcy Act 1966 (Cth) pursuant to s 116 of that Act. The affidavit of the defendant makes clear that the basis for the challenge to the Balgownie property being included amongst property divisible is a declaration of trust which he and others executed on 29 May 2008. A difficulty about that is that the declaration of trust is not stamped, and s 304 of the Duties Act 1997 (NSW) provides that an instrument that effects a dutiable transaction is not available for use in law or equity for any purpose and may not be presented in evidence in a court unless it is duly stamped.

3. The proceeding in the Federal Circuit and Family Court was initially to come before the court for the first time on 28 June 2024. However, the present defendant filed an application within the proceeding for urgent interim relief. The result is that the Federal Circuit Court proceeding will come before the court on 6 May 2024 where I understand some form of interim relief will be sought, if this court does not grant a stay of the judgment for possession.

4. The second basis put forward now for the stay in this court is that the defendant has indicated an intention to appeal against my judgment of 4 April 2024, in particular in respect of what appears at [7] of that judgment where I observed that until a declaration concerning the declaration of trust instrument was made the defendant had no equitable interest in the land.

5. The appeal has not yet been filed, and it is probable that leave will need to be given because the judgment that I gave was given effectively on a default basis after the striking out of the defendant’s defence. Nevertheless it seems to me that, if the defendant is to pursue an application for leave to appeal to the Court of Appeal and given that the defendant is already proceeding in the Federal Circuit and Family Court to have a determination made about what of his property is divisible amongst the creditors, there is a chance that those applications will be futile unless a stay for a short period is granted against the execution of the judgment for possession.

6. In those circumstances it is not necessary to reach a final view about whether the declaration of trust annexed to the affidavit of the defendant of 3 April 2024 is received into evidence on this application. It is sufficient to note that the proceeding commenced in the Federal Circuit and Family Court challenges the inclusion of the Balgownie land as property divisible amongst creditors. The fact that the declaration is unstamped is a matter for consideration by that Court when it is sought to be relied upon as the basis for the claim under s 116.

7. A short stay should be granted until the close of business on 6 May 2024 when the defendant’s application is first before the Federal Circuit and Family Court.

8. I will grant the parties liberty to apply to my associate on two days’ notice if there is a need to do so on or shortly after 6 May by reason of what occurs on that day.

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