Prime Capital Securities Pty Ltd v Argeetes

[2025] NSWSC 812

Supreme Court

New South Wales

Medium Neutral Citation:

Prime Capital Securities Pty Ltd v Argeetes [2025] NSWSC 812

Hearing dates:

11 July 2025

Date of orders:

11 July 2025

Decision date:

11 July 2025

Jurisdiction:

Common Law

Before:

Hamill J (as Duty Judge)

Decision:

(1) Decline to make the orders sought in the notice of motion tonight.

(2) The notice of motion remains on foot and the matter is adjourned to Monday 14 July 2025 at 10.00am for mention only before the Duty Judge.

Catchwords:

CIVIL LAW – judgment for possession of real property – writ of possession – ejection of family from home – application to stay judgment, writ and ejection – application made after hours and ex parte – plaintiff’s right to be heard – hardship to family – where emergency accommodation secured – relevant considerations and categories of cases – attempt to re-finance – relief declined in the interim and matter placed in duty list on Monday to enable plaintiff to be advised of the application

Legislation Cited:

N/A

Cases Cited:

GE Personal Finance Pty Limited v Smith [2006] NSWSC 889

Texts Cited:

N/A

Category:

Procedural rulings

Parties:

Prime Capital Securities Pty Ltd (Plaintiff)
Haris Peter Argeetes (First Defendant)
Sophia Argeetes (Second Defendant)

Representation:

Plaintiff (not represented)
First Defendant (in person)

File Number(s):

2024/00462281

Publication restriction:

N/A

EX TEMPORE JUDGMENT

1. This is a notice of motion in proceedings that were determined by the Court in January and May of this year. The motion seeks a stay of orders made on 21 January 2025 for possession of real estate at 11 Walter Street, Mortdale, and that there be a stay of a writ of possession ordered on 20 May 2025 relating to that same piece of real estate. A third order is in these terms:

“The second defendant and I [that is, the two defendants in the case], are granted a stay of the eviction of 11 Walter Street, Mortdale”. 

2. That eviction was affected today, Friday 7 July 2025, by the sheriff in accordance with the Court’s orders.

3. The circumstances of the application are plainly urgent. Accordingly, the Court constituted itself – that being me as Duty Judge – just after 5.00pm following an approach by the two defendants to the Duty Registrar a little earlier in the afternoon. The time is now 6.30pm, and I have heard submissions from the first defendant, Haris Peter Argeetes, who is the father of two children whose family was evicted from their home in Mortdale earlier today.

4. The background to the case is important. The statement of claim was filed on 12 December 2024 by the plaintiff, Prime Capital Securities Pty Ltd, and that statement of claim sought judgment for possession of the land at 11 Walter Street, Mortdale. Judgment was entered on 21 January 2025, no doubt following defaults in the payment of the mortgage. There has been, therefore, over five months for the application to stay that judgment or order for possession to have been made, and yet it is made on a Friday night in circumstances where, despite a number of attempts to obtain the input of the plaintiff, those attempts have failed. The result of that is that I have only heard from one side of this argument, that is from Mr Argeetes himself. That fact, in itself, does not disentitle him and his family to the relief that they seek, but it makes it very difficult to make the kind of emergency type orders that are sought in this case.

5. The principles in cases such as this one are well established. The considerations that a court or a judge in my position should take into account were set out by Johnson J as long ago as 2006 in GE Personal Finance Pty Limited v Smith [2006] NSWSC 889. His Honour essentially categorised the kind of application in this kind of case as falling into two categories, the first one being where the original debt is disputed and the defendant seeks to challenge a judgment on the basis that it is either wrong in fact or wrong in law. That is not this case. I do not understand Mr Argeetes to be submitting that he does not owe the money, that Prime Capital Securities were not entitled to foreclose or that Prime Capital Securities were not entitled to make the application for the writ of possession and proceed with the ejectment as it has done.

6. The other kind of case that Johnson J contemplated, the second category of case, is one where a defendant seeks to refinance. That is this case. Mr Argeetes has indicated to me this afternoon and has sworn an affidavit to a similar effect, although with less detail, that he and his wife do intend to refinance. In that regard, Johnson J spoke of a consideration of the value of the property considered against the amount of the debt. Again, Mr Argeetes addresses that issue in his affidavit, and he provides some documentation in support of it. His affidavit says that the property is estimated to be valued at between $1.75 million and $2 million, and he has produced two bank valuations obtained this afternoon which bear out the lower of those estimates. The National Australia Bank has provided a valuation summary report with a valuation of $1.76 million, and the Macquarie Bank comes up with a very similar estimation of the value of the property.

7. Against that, the affidavit swears that the current debt on the mortgage is $1.4 million. Considering those matters, there would seem to be equity of around $300,000. That is a factor that militates in a very general way in favour of relief being granted. However, those valuations must have been hurriedly produced and loose. At this stage, I do not have a clear indication of the actual debt, and this is where the absence of the plaintiff creates real difficulties. What normally happens in applications of this kind, even when they are brought late and in circumstances of urgency, is that the bank, finance company or private lender puts forward information as to the amount of the debt and recent repayments or recent defaults, which allows the Court to better understand whether or not there is a realistic prospect of refinancing.

8. The other aspect of this case which is of some concern is that, even though the judgment was entered back in January, the attempt to refinance has not proceeded to any degree at all. I am told that there is a corporation called Pepper’s Home Loans that is being approached, but the application to Pepper’s is not to be made until next Monday. Again, in many cases of this kind, where the Court is called upon to consider staying a writ of possession, there are more advanced applications. 

9. I should have said that Johnson J also referred to a third category of case, and that is one where the applicant for the stay seeks to sell the property on their own terms. Sometimes there are benefits to that, in that a mortgagee sale is often less attractive and yields a lesser price. Again, as I understand it, that is not this case. What the defendants seek is to have their family move back into the home and to achieve that by refinancing after it has done so.

10. Those are the general broad categories of cases of this kind and the sort of considerations that come into play when a court is considering whether to grant urgent relief.

11. Further to that, Johnson J also indicated that a court must or may take into account hardship to those who are subject to the threat of eviction from their home. In this case, there is strong evidence of that hardship although, it would have to be said, there often is. I have considered the matters set out in Mr Argeetes’ affidavit. He and his wife have two children aged in their teenage years. I will not mention their names but one is in year 11 and one is in year 10. They attend local schools in Hurstville, being Danebank Anglican School for Girls and the St George Christian School. Each of them has sporting commitments.

12. Because the sheriff essentially knocked on the door and kicked the family out first thing this morning, the family was told to take the bare minimum of their property away. The children do not have their uniforms for sport or their uniforms for school, and Mr Argeetes does not have the things that he uses for his work as a financial planner. All those things remain in the home. There is also a matter personal to the defendants concerning the health of the first defendant’s mother who has motor neurone disease. I will not go into it in detail, but she lives close by and their proximity to her means that the first defendant can offer her assistance with her illness and practical things like giving her lifts to appointments.

13. Today has been, unquestionably, a nightmare for the defendants. They have had to scurry about and obtain alternative accommodation. Luckily enough, they have been able to find assisted accommodation and, for at least one week, they have a two-bedroom apartment in Cronulla. I have been told the children are at the first defendant’s parents’ place.

14. Everything that I have just said does establish real hardship for the family. One of the things that distinguishes this case from any other that I have seen or any other that I am aware of in the reports is that the writ of possession has already been executed. The Court frequently enough receives very late applications, the night before the sheriff is to knock on the door. In this case, the sheriff has knocked on the door, and the family has been evicted.

15. Whilst Mr Argeetes has provided a number of explanations for that, I find them very difficult to understand. I am finding it very difficult to reach a position where I can provide him with any suitable relief tonight. In particular, it might be thought that as a matter of law it is too late, because the writ has been executed. I am not saying that as a matter of legal certainty. Because of the urgency of the matter, I have had no time to look into that question. However, the reality is I can see no real practical utility, and I can see extreme unfairness to the plaintiff, in purporting to undo what has already been done in the terms of the ejectment of the family today. Having said that, the Court does sometimes make orders putting things or attempting to put things back together, nunc pro tunc, but whether or not that is even an available remedy is not something of which I am sure tonight.

16. The case is one where I think it is imperative that Prime Capital Securities are provided with the opportunity to be heard. It is of some comfort that the family has the emergency accommodation, a two-bedroom unit in Cronulla, for at least a week. It may be that the Duty Judge next week will have the capacity to hear the case and to make other orders.

17. The other thing I have contemplated is whether I could make some emergency orders. Mr Argeetes tells me there is a real estate agent locally who has the keys now after the locks were changed, and who could allow the family access to at least obtain Mr Argeetes’ tools of trade, the children’s uniforms, and more clothes. But again, I feel that this is a solution that is not practical in the circumstances of urgency. I do not know, and cannot simply accept, that a local real estate agent would make themselves available to access the property. It would be possible that that may happen either by agreement between the parties or by compulsion of the Court next week. But on the information I have, I simply cannot see any emergency type relief of that nature that I can provide on a Friday night.

18. The result of that cobbled together analysis is that the orders sought in the notice of motion will not be granted tonight. What I am going to do is to adjourn the case until Monday 14 July 2025 at 10.00am for mention only before the Duty Judge. I expect her Honour will require a better understanding of the availability of the plaintiff to be heard on the orders sought.

19. Because of the evidence of hardship, which I generally accept, I will not dismiss the notice of motion altogether, but I am declining and refusing to make any of the orders sought other than the fourth one so that the notice of motion will be listed before the Duty Judge of the Supreme Court at 10.00am on 14 July 2025 for further consideration.

**********

Decision last updated: 24 July 2025