Sutherland v Best
[2013] NSWSC 923
•10 July 2013
Supreme Court
New South Wales
Medium Neutral Citation: Sutherland v Best [2013] NSWSC 923 Hearing dates: 10 July 2013 Decision date: 10 July 2013 Jurisdiction: Common Law Before: Schmidt J Decision: Application is refused.
Catchwords: PROCEDURE - urgent application for stay of eviction pursuant to a writ of possession - no basis for grant of stay - stay refused Cases Cited: GE Personal Finance Pty Limited v Smith [2006] NSWSC 889 Category: Procedural and other rulings Parties: Roderick Mackay Sutherland in his capacity as trustee in bankruptcy of the estate of Mark Andrew Best (also known as Mark Andrew Bezzina) (Plaintiff)
Mark Andrew Best (Defendant)Representation: Solicitors:
No appearance (Plaintiff)
Mr Best, unrepresented (Defendant)
File Number(s): 2012/319313 Publication restriction: None
EX TEMPORE Judgment
Before the Court this morning is the defendant Mark Andrew Best, also known as Mark Andrew Bezzina. The proceedings were commenced by statement of claim filed on 15 October 2012 by which judgment for possession of land situated at Forest Lodge where Mr Bezzina resides was sought. The proceedings were not defended, with the result that default judgment and a writ of possession were issued by the Court.
Today at 12 noon the writ of possession is due to be executed and Mr Bezzina to be evicted.
This morning he has approached me, sitting as duty judge, for a stay of eviction. There is no notice of motion or affidavit sworn in support of his application. The application has been made orally by Mr Bezzina in circumstances where he has submitted that a stay should be granted on hardship grounds. He has made no arrangements to vacate the premises. He claims that this is because he was represented in negotiations with the plaintiff, his trustee in bankruptcy, up until yesterday afternoon, by a solicitor whose name he is not precisely sure of but thinks it's spelled D-e-z-i-n-o. He claims that he was informed only yesterday afternoon that nothing more could be done for him in order to stay the execution.
Mr Bezzina says that he subsequently had conversations yesterday afternoon and this morning with an employee of the trustee, who he can only identify as Andrew, in which any stay of execution of his eviction was not able to be agreed.
To support his application for a stay, Mr Best relies on a document which he claims evidences his communications, late yesterday evening with his father who is in Queensland, by email at certain gmail addresses. By that document, Mr Bezzina says his father has indicated that he has funds to satisfy all of his creditors and that he is willing to pay them out within 14 days.
The document, on its face, does not support the submissions which have been advanced. The time on the alleged communications does not accord with his submissions as to when they occurred, the way in which the email communications are addressed, and their order, suggest that they were not in fact communications made by those Mr Bezzina has submitted made them.
The circumstances in which a late application such as this might be granted by the Court have been repeatedly considered, for example, by Johnson J in GE Personal Finance Pty Limited v Smith [2006] NSWSC 889. There his Honour emphasised at [30] that defendants can have no reasonable expectation that a stay of execution of a writ of possession will be granted upon request in every case such as this.
The nature of the proceedings and the stage which the proceedings have reached, by the time of such an application, are important factors which the Court must take into account and which a defendant must overcome, on a stay application. A defendant must also satisfy a Court that a sound and proper basis exists for the grant of any stay sought.
In this case, regrettably, I am well satisfied that Mr Bezzina has not made out a basis for the grant of a stay. The evidence which he relies on simply does not support the submissions which he has advanced, so late.
There is no evidence which establishes that if the stay were granted, what he claims, namely, funds becoming available to satisfy all of his creditors, would in fact be forthcoming. The only basis on which a stay might conceivably be considered, is on hardship grounds.
There is no suggestion from Mr Bezzina that he has not long been aware of the consequences of the proceedings which have been brought against him. He says that he has sought to take steps to prevent those consequences unsuccessfully and yet has taken no steps, at all, to ensure that he can vacate the premises in an orderly fashion.
It seems to me, regrettably, in these circumstances, that this is one of those unfortunate but not unusual cases, where it must be considered that there is simply no basis for the exercise of the Court's discretion in his favour has been established. Accordingly, the application must be refused.
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Decision last updated: 11 July 2013
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