Radin, Judith Anne v Commonwealth Bank of Australia

[1997] FCA 1314

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 985 of 1995

BETWEEN:	JUDITH ANNE RADIN APPLICANT
AND:	COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124) RESPONDENT

JUDGE:	LINDGREN J
DATE:	20 NOVEMBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(ex tempore)
(motion for second extension of stay)

There is before the Court a motion brought by notice of motion filed 19 November 1997.  The applicant, Mrs Radin, seeks a further extension of a stay of execution of the writ of possession.  I have delivered two judgments in connection with the writ of possession, one in which I gave reasons for judgment on 30 April 1997 and the other in which I gave reasons for judgment on 1 August 1997.  I will not repeat what was said in both of those judgments, but I incorporate those reasons in these present reasons for judgment.

In support of the present motion, Mrs Radin relies upon her affidavit sworn 7 November 1997. She relies on several grounds for the extension of the stay.  One is a problem which has developed with one of the children at school.  Another ground is difficulty of a financial nature which Mrs Radin has encountered in raising removal expenses.  A third concerns her legal representation in the substantive proceeding: counsel who has appeared for her in the proceeding has fallen ill and other counsel has been briefed only recently, with consequent delay and inconvenience in the preparation of her written submissions.

According to Mrs Radin's affidavit, in the September 1997 school holidays she travelled to Brisbane with her children and stayed there with an uncle for a week. Apparently on that occasion, and in any event generally, she has been investigating the possibility of re-locating to Brisbane in view of the fact that housing in Brisbane is less expensive than in Sydney. 

By the motion, Mrs Radin seeks an extension until the substantive proceeding is disposed of, but substantially for the reasons which I gave in the earlier two judgments,  I do not think it appropriate to grant an extension for so long. 

Taking into account all the circumstances, including the Bank's opposition to an extension without, however, pointing to any particular prejudice other than the undoubted financial one in the sense of continuing accrual of interest, I think it appropriate to grant an extension at this stage to mid-January, that is 16 January 1998.

I make the following orders:

1. I direct that the period for which the writ of possession referred to in par 4 of orders dated 30 April 1997 is to lie in the Court office and not be executed, be extended to 16 January 1998.

1. I reserve costs of the motion brought by Mrs Radin's notice of motion filed 19 November 1997.

1. I direct that no further steps be taken to execute the writ of possession until after 16 January 1998.

1. I reserve liberty to either party to apply.

1. I stand the matter over to 16 January 1998 at 9.30 am for further directions.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren

Associate:

Dated:            27 November 1997

Counsel for the Applicant:	Mr M B Duncan
Solicitor for the Applicant:	Richard A Licardy & Co
Counsel for the Respondent:	Mr J E Marshall with Mr R S Hollo
Solicitor for the Respondent:	Abbott Tout
Date of Hearing:	20 November 1997
Date of Judgment:	20 November 1997