St George Bank - a division of Westpac Banking Corporation v Press
[2017] NSWSC 1100
•18 July 2017
|
New South Wales |
Case Name: | St George Bank – a division of Westpac Banking Corporation v Press |
Medium Neutral Citation: | [2017] NSWSC 1100 |
Hearing Date(s): | 18 July 2017 |
Decision Date: | 18 July 2017 |
Jurisdiction: | Common Law |
Before: | McCallum J |
Decision: | Note that in accordance with the judgment of Fagan J, the plaintiff is entitled to have a writ for possession issued, any such writ not be executed before 21 August 2017. |
Catchwords: | POSSESSION – application for stay pending appeal – where no notice of appeal filed – self-represented litigant – usual practice of granting short stay following final determination of bank’s right to possession where the security property is the defendant’s home. |
Cases Cited: | GE Personal Finance Pty Ltd v Smith [2006] NSWSC 889 |
Category: | Procedural and other rulings |
Parties: | St George Bank – a Division of Westpac Banking Corporation (applicant) |
Representation: | Counsel: |
File Number(s): | 2015/317127 |
JUDGMENT
HER HONOUR: These are proceedings for possession brought by St George Bank against Mr Ian Press. On 9 June 2017 Fagan J published a judgment determining an application in respect of a disputed settlement of the proceedings. His Honour made a declaration that the proceedings had settled on the terms of a Deed of Settlement entered into at a mediation of the proceedings. His Honour made orders for possession and the issue of a writ together with the entry of judgment for the mortgage debt.
Mr Press intended to appeal against that decision and, on that premise, brought an application for a stay of enforcement of the writ pending appeal. He represents himself and is not legally trained. The application most recently came before Walton J on 10 July 2017. His Honour adjourned the proceedings to today to allow Mr Press to put on evidence to support the application.
The application is brought by notice of motion dated 7 July 2017 which includes two substantive prayers for relief. The motion also seeks orders as to costs. Each of the substantive prayers for relief proceeds on the premise that there is an existing appeal against the judgment of Fagan J. In fact, as events have been described in the proceedings this morning, it transpires that the only step Mr Press has to date taken in the Court of Appeal is to file a notice of intention to appeal, which he did on 3 July 2017.
In those circumstances, I explained to Mr Press the difficulty that there is no existing proceeding in the Court of Appeal by reference to which the Court could appropriately grant a stay pending appeal. I also drew Mr Press's attention to the written submissions provided by Mr Bannan on behalf of the bank, which relevantly included the proposition that, in the absence of any proper basis for the grant of a stay pending appeal, the circumstances in which the Court might grant a stay of Fagan J's orders are as described in the principles stated by Johnson J in GE Personal Finance Pty Ltd v Smith [2006] NSWSC 889. As submitted by Mr Bannan, that decision has been applied many times and is now reflected in the Practice Note that governs the possession list, SC CL 7.
The relevant principles are set out in paragraph 18 of Mr Bannan's submissions, a copy of which was provided to Mr Press in Court today. I should note that the bank had previously served those submissions but in any event the point is that a copy was placed before Mr Press in Court today.
In the face of that information Mr Press sought an adjournment for the purpose of obtaining legal assistance with a view to filing a notice of appeal properly articulating his grounds of appeal. Separately, as very fairly conceded on behalf of the bank, the Court would ordinarily allow a short stay following any final determination of a bank's entitlement to possession so as to allow a litigant to effect orderly departure from the property: see Satchithanantham v National Australia Bank [2009] NSWCA 268 at [67] per Young JA; Giles and Hodgson JJA agreeing at [1] and [2].
Separately, resting on the principles stated at paragraph 18(d) of Mr Bannan's submissions (where it is noted that a stay can be sought on hardship grounds where a defendant is not in a position to demonstrate a reasonable foundation for a stay on other grounds), I enquired of Mr Press as to his personal circumstances. He did not come to Court expecting to make an application on that basis, and accordingly his evidence did not address the issue, but from the bar table Mr Press informed me that the house is the home of himself, his wife and their teenaged daughter who is presently in the HSC year of her secondary education and further, in short, that they are in parlous financial circumstances.
On that basis, I consider it appropriate to grant a short stay today, in the order of four weeks. It was noted in argument that that would enable Mr Press an opportunity separately to address the question of any appeal. I have made plain to Mr Press, however, that the circumstances on which any stay on hardship grounds alone might be extended are very confined and that he should have regard to the principles set out in Mr Bannan's submissions, and should not assume that any extension of the stay will be granted on the next occasion on hardship grounds alone.
For those reasons I make the following orders:
(1)I note that, in accordance with the judgment of Fagan J, the plaintiff is entitled to have a writ for possession issued.
(2)I direct that any such writ not be executed before 21 August 2017.
(3)To avoid confusion, I note that the plaintiff's request to the registry by email dated 10 July 2017 is of no future application.
(4)I stand the proceedings over to 21 August 2017 before the duty judge.
(5)Costs are reserved to the next occasion.
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