Radin, Judith Anne v Commonwealth Bank of Australia
[1997] FCA 783
•1 August 1997
IN THE FEDERAL COURT OF AUSTRALIA )
) NEW SOUTH WALES DISTRICT REGISTRY ) NG 985 of 1995 ) GENERAL DIVISION )
BETWEEN: JUDITH ANNE RADIN
Applicant/Cross-RespondentAND: COMMONWEALTH BANK OF
AUSTRALIA (ACN 123 123 124)
Respondent/Cross-Claimant
JUDGE: LINDGREN J PLACE: SYDNEY DATED: 1 AUGUST 1997
REASONS FOR JUDGMENT
(ex tempore)
The cross-respondent, Mrs Radin, applies for an extension of the stay of execution of a writ of possession.
On 30 April 1997, I granted judgment to the cross-claimant (“the Bank’) against Mrs Radin for $711,011.06, gave the Bank judgment for possession of the residential property where Mrs Radin and her two children live at 11 Appian Way, Burwood (“the Property”), granted the Bank liberty to issue a writ of possession, directed that any writ of possession issued lie in the Court office and not be executed prior to 30 June 1997, reserved liberty to Mrs Radin to apply on notice of motion supported by affidavit for an extension of that period, and ordered Mrs Radin to pay the Bank's costs of the Bank's motion brought by notice of motion filed on 16 April 1997. My written Reasons for Judgment were issued to the parties on 8 May 1997.
On 27 June 1997, Mrs Radin filed an affidavit of that date directed to supporting an application by her for an extension of the period of the stay which was then due to expire three days later on 30 June. I am informed by counsel for the parties that following the filing of the affidavit, it was agreed that the matter should not be dealt with by the Duty Judge but should await my return from leave. The matter came before me last Tuesday 29 July when Mrs Radin's affidavit sworn 27 June was read. The matter was stood over to this morning when a further affidavit, sworn by Mrs Radin on 31 July, was read. As well, a notice of motion has been filed in Court this morning formalising Mrs Radin’s application. She moves for an order that “[t]he stay of the Writ of Possession granted on 30 April, 1997 be continued until further order.”
When the matter was before me last Tuesday, counsel for Mrs Radin raised the possibility that certain concessions made by her solicitor on her behalf during the hearing before me on 30 April should not have been made. This matter has been the subject of some discussion. I make it clear that I put entirely to one side and do not entertain at all as a ground for granting an extension of time, the matter to which I have referred. If the “possibility” referred to by her counsel is to be pursued, Mrs Radin should seek appropriate relief formally and on evidence. In the meanwhile, lest there be any misunderstanding, I again set out the following extracts from my written Reasons for Judgment dated 8 May 1997:
“In the three proceedings [NG 984 of 1995, NG 437 of 1996 and the present proceeding], the Radins seek to have mortgages given by them to the Bank over various properties set aside, and to recover damages from the Bank. But an important distinction must be made: neither Mr nor Mrs Radin challenges the validity of the mortgage over the Property. That is to say, they have, through their legal representatives, accepted that the Bank is entitled to the benefit of that security.” (page 2)
“There has been no dispute this morning that the Bank is entitled to judgment against Mrs Radin for the current balance of both loans ($711,011.06) and to recover possession of the Property and to sell it. Mr Licardy, solicitor, who appears for Mrs Radin, submits, however, that as a matter of discretion, I should grant a stay until the hearing and final determination of the currently pending proceedings. In fact, Mr Licardy seeks a stay until 31 December 1997.” (page 5)
“The amount of money which the Bank claims to recover from the Radins by the Bank’s cross-claim against them in the proceeding brought by Mr Radin (NG 437 of 1996) is of the order of five million dollars. On any reckoning, even after all the properties mortgaged to the Bank are taken into account, there would be a substantial shortfall. Indeed, as I noted earlier, Mr Licardy accepts that the Property will have to be sold at some time in the future.” (page 6)
“I think that the proper approach today is to make an order based on what might be called the ‘general’ consideration that Mrs Radin should be allowed a period of time sufficient to enable her and the children to obtain alternative accommodation, while reserving liberty to her to apply, by notice of motion supported by affidavit, if an extension of time is to be sought. Of course, this is not to invite the making of such an application or to indicate that an extension of time would or would not be likely to be granted. There may, however, be developments between now and 30 June which would justify some extension.” (page 7)
It was accepted, then, that Mrs Radin would have to vacate the Property, and that the only question was when she should be required to vacate it. I proceed on the basis that this is still the position.
Nonetheless, I think that there should be an extension of time. The evidence in support of Mrs Radin's application can be found in her affidavits sworn on 27 June and 31 July. She has not been cross-examined on those affidavits and the Bank has not led evidence in opposition to the application. The Bank submits, however, that I should not be satisfied that the evidence of events since 30 April warrants the grant of an extension.
It is not necessary for me to give an account of all the evidence on which Mrs Radin relies. I accept that generally, the focus of attention must be on events since the making of the orders on 30 April. The unchallenged evidence of Mrs Radin shows that since that time she has approached real estate agents to explore the availability of rental accommodation. Her affidavit of 31 July gives a detailed account of this. She has made inquiries of real estate agents and inspected properties. Indeed, she says that every week she has searched for a suitable property through the rental pages of “The Sydney Morning Herald” but has been unable to locate a three-bedroom house or unit for less than $210 per week plus bond. She says, further, that a “decent” house or unit in a safe neighbourhood calls for a rent of between $300 and $400 per week plus bond. Shortly, Mrs Radin says that she does not have the money available from her income of less than $500 per week as a teacher, after payment of outgoings, to pay for rental accommodation in proximity to her children's schools.
A possibility which Mrs Radin has explored is that of moving to live with her parents at Nelson Bay. Although this may ultimately be the course which she follows, I do not think that it should be forced upon her at present in view of the fact that the resumption of the hearing of the litigation is to occur on 18 August. Mrs Radin is in the course of being cross-examined. It will be necessary for her to be in the Sydney area at least for some time between now and 18 August to prepare for the hearing. The remainder of the hearing is fixed to take place over four weeks, from 18 August to 5 September and from 29 September to 3 October.
I note that in addition to availability of suitable rental accommodation, Mrs Radin’s affidavit evidence goes to her current state of health and the welfare of her children.
All things considered, I think that there should be an extension of the stay of execution of the writ of possession to 31 October 1997, with liberty for either party to apply for a variation as evidence becomes available of the situation as it changes from now to 31 October. Accordingly, the orders of the Court are as follows:
I direct that the period for which the writ of possession referred to in paragraph 4 of orders dated 30 April 1997 is to lie in the Court office and not be executed, be extended to 31 October 1997.
I reserve liberty to either party to apply on notice of motion supported by affidavit for a variation of order 1.
I reserve costs of the motion brought by Mrs Radin’s notice of motion dated 1 August 1997.
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: 18 August 1997
Counsel for the Applicant/Cross-Respondent (Applicant on the motion): Mr D J Thorley Solicitor for the Applicant/Cross-Respondent (Respondent on the motion): Richard A Licardy & Co Counsel for the Respondent/Cross-Claimant (Respondent on the motion): Mr R S Hollo Solicitor for the Respondent/Cross-Claimant (Respondent on the motion): Abbott Tout Dates of Hearing: 29 July, 1 August 1997 Date of Judgment: 1 August 1997
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