FEDERAL COURT OF AUSTRALIA
Weston (Trustee) v Sanna (No 3) [2020] FCA 1625
File number: NSD 276 of 2016 Judgment of: MARKOVIC J Date of judgment: 2 November 2020 Catchwords: PRACTICE AND PROCEDURE – application for stay of execution of a writ of possession – application dismissed Legislation: Federal Court Rules 2011 (Cth), r 41.1 Cases cited: Carter v Geoff Layton and Co Pty Ltd (1993) 43 FCR 392
Endormer Pty Ltd (in liq) v Australian Guarantee Corporation Ltd [2001] FCA 15
Division: General Division Registry: New South Wales National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Number of paragraphs: 22 Date of hearing: 2 November 2020 Counsel for the Applicant: Mr A Spencer Solicitor for the Applicant: Dentons Australia Counsel for the First Respondent: Mr H Hassan appeared on behalf of the First Respondent Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs Counsel for the Fifth Respondent: The Fifth Respondent filed a submitting notice save as to costs Counsel for the Seventh Respondent: The Seventh Respondent appeared in person Solicitor for the Ninth Respondent: K&L Gates Solicitor for the Tenth Respondent: Mr G Adelstein of Adelstein Solicitors Solicitor for the Eleventh Respondent: Mr A Hack of Matthews Folbigg Lawyers Counsel for the Twelfth Respondent: The Twelfth Respondent filed a submitting notice save as to costs
Table of Corrections 26 March 2021 MNC changed to Weston (Trustee) v Sanna (No 3) [2020] FCA 1625 ORDERS
NSD 276 of 2016 BETWEEN: MR PAUL GERARD WESTON AS TRUSTEE OF THE BANKRUPT ESTATE OF LEPA SANNA
Applicant
AND: CORRADO SANNA
First Respondent
BORAL CONSTRUCTION MATERIALS GROUP LTD
Second Respondent
E & B PASTORAL PTY LTD (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
MARKOVIC J
DATE OF ORDER:
2 NOVEMBER 2020
THE COURT ORDERS THAT:
1.Grant access to all parties to the documents produced by Westpac Banking Corporation by email to the Associate to Markovic J on 2 November 2020 in answer to a notice to produce issued by Paul Gerard Weston as trustee of the bankrupt estate of Lepa Sanna and dated 30 October 2020.
2.The interim application filed by Corrado Sanna on 27 October 2020 is dismissed.
3.Mr Sanna pay the costs of that application of the parties participating in today’s hearing, namely Paul Gerard Weston as trustee of the bankrupt estate of Lepa Sanna, Lepa Sanna, Defined Properties Investments Pty Ltd and Wyse & Young International Pty Ltd (in liquidation).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)MARKOVIC J:
This is an application made by Corrado Sanna to stay the execution of a writ of possession issued by the Court for the property situated at 33 Circulo Drive, Copacabana, New South Wales, 2251 (Copacabana Property) until 15 January 2021. In his interim application filed on 27 October 2020, Mr Sanna states that he seeks the stay “[t]o enable…
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- Case
- [2020] FCA 1625
- Decision Date
CaseChat Overview and Summary
The court had to decide whether to exercise its discretion to grant a stay of the execution of the writ of possession, considering the interests of all parties involved, including Mr Sanna, the Trustee, the creditors, and the caveators. The court considered the long history of the proceedings, the orders made in June 2020 to facilitate the sale of the property and Mr Sanna's vacation, and the lack of evidence that a stay would assist Mr Sanna in any way. The court also noted that Mr Sanna had had ample time to arrange his affairs and vacate the property, and that the amount secured against the property had increased significantly during this time due to Mr Sanna's failure to make payments on the Westpac Loan.
The court dismissed the application for a stay of execution, noting that the evidence did not indicate how a stay would result in any different outcome for Mr Sanna. The court also noted that there was no evidence of any further revised offer to the Trustee for the purchase of the property, that a short adjournment would alleviate the current practical problems Mr Sanna was facing in finding alternative accommodation, or that a stay of approximately two months would assist Mr Sanna's current medical condition. The court concluded that it did not propose to accede to Mr Sanna's application for a stay of the execution of the writ of possession.
The court made an order dismissing Mr Sanna's interim application filed on 27 October 2020 and an order that Mr Sanna pay the costs of that application of the parties participating in today's hearing. The court also granted access to all parties to the documents produced by Westpac Banking Corporation.
Orders
Orders of the court
1. Grant access to all parties to the documents produced by Westpac Banking Corporation by email to the Associate to Markovic J on 2 November 2020 in answer to a notice to produce issued by Paul Gerard Weston as trustee of the bankrupt estate of Lepa Sanna and dated 30 October 2020.
2. The interim application filed by Corrado Sanna on 27 October 2020 is dismissed.
3. Mr Sanna pay the costs of that application of the parties participating in today’s hearing, namely Paul Gerard Weston as trustee of the bankrupt estate of Lepa Sanna, Lepa Sanna, Defined Properties Investments Pty Ltd and Wyse & Young International Pty Ltd (in liquidation).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Another circumstance in which the Court might order a stay is in reliance on what has been described as “considerations of practical necessity”: see Endormer Pty Ltd (in liq) v Australian Guarantee Corporation Ltd [2001] FCA 15 at [21]. In that case, Lindgren J granted a stay of the execution of a writ of possession for a short period of seven days. However, his Honour did not do so on the various grounds relied on by the applicant for a stay but because of considerations of practical necessity, including the time it would take to vacate the subject property.Consideration Having considered the submissions made by the parties, this is not a case where I would exercise my discretion to grant a stay of the execution of the writ of possession. My reasons for reaching that conclusion follow. First, this proceeding has, as summarised above, had a long history. Mr Sanna has been on notice of the orders that the Copacabana Property be transferred to the Trustee and of its impending sale since March 2019. Despite those orders, he has continued to occupy the Copacabana Property. In June 2020 orders were made to facilitate the sale of the Copacabana Property and Mr Sanna’s vacation of that property. On the basis of those orders, Mr Sanna had some seven weeks to arrange his affairs and vacate the property. That did not occur and, ultimately, the Trustee was required to apply for a writ of possession which he did, with the writ issuing on 17 September 2020. It is now November 2020 and the writ is due to be executed in two days. I accept that the prospect of having to vacate the Copacabana Property, which, it seems, has been Mr Sanna’s home for some time, would cause distress and concern. However, there is no evidence before me one way or the other as to how a stay would assist Mr Sanna and how it might ameliorate his current condition. On the present application, a stay of approximately two months is sought. That, on one view, may simply put off the inevitable, that is, the requirement that Mr Sanna vacate. It may also be difficult for Mr Sanna to obtain accommodation. But the evidence before me relied on by the Trustee indicated that there were vacant properties available for lease in areas relatively close to, or close to, the Copacabana Property. Again, Mr Sanna has had months, if not years, to arrange his affairs in this regard. Secondly, while Mr Sanna has remained in occupation of the Copacabana Property, the amount secured against it as a result of a loan from Westpac Banking Corporation (Westpac Loan) continues to increase. Mr Sanna has not been paying any fees for his continued occupation of the Copacabana Property nor has he been servicing that loan. The evidence before me showed that the last payment made on the Westpac Loan was on 16 May 2019. That is, there has been no payment made for approximately 18 months. In that time, the amount of the Westpac Loan has increased by approximately $60,000. That is not in the interests of any party and, in particular, not in the interests of the creditors and the caveators, including the caveators who are now respondents to this proceeding.