Australian Mortgage Finance Services Pty Ltd v Murabito [2022] NSWSC 1226

Supreme Court New South Wales

Medium Neutral Citation: Australian Mortgage Finance Services Pty Ltd v Murabito [2022] NSWSC 1226 Hearing dates: 9 September 2022 Decision date: 09 September 2022 Jurisdiction: Equity - Duty List Before: Meek J Decision: Dismiss application to stay writ of possession with costs Catchwords: REAL PROPERTY — Possession of land — Application to stay execution of writ for possession — hearsay evidence of possible funding to pay judgment debt — Registered proprietors being two of three applicants are both bankrupt — Payment of judgment debt would not entitle any of applicants to possession of property which had vested in the respective trustees in bankruptcy — No evidence of extent of indebtedness of bankrupts' estates — No evidence trustees in bankruptcy aware of application or had given or promised to give any licence to applicants to remain in property — Application based on asserted health and hardship grounds — Attempts to secure alternative accommodation —Application on a Friday dismissed in context where mortgagee would request Sheriff not to act on writ until Monday afternoon PRACTICE AND PROCEDURE — Initial ex parte application — Undertaking as to damages proffered by applicant without disclosure that he and another applicant were undischarged bankrupts — Material nondisclosure of a matter impacting upon decision to make stay ex parte prior to urgent contested stay application — Fact of bankruptcy ought to have been disclosed Legislation Cited: Bankruptcy Act 1966 (Cth), ss 58, 60 Uniform Civil Procedure Rules 2005 (NSW), r 25.8 Cases Cited: GE Personal Finance Pty Ltd v Smith [2006] NSWSC 889 Category: Procedural rulings Parties: Australian Mortgage Finance Services Pty Ltd ACN 643 981 27 as trustee for the Australian Mortgage Finance Services Fund (Plaintiff) Steven Samuel Murabito (First Defendant / First Applicant on Motion) Lila Stojcevksi (Second Defendant / Second Applicant on Motion) Representation: Counsel: B B Palmer (solicitor) (Plaintiff) L T Fermanis (Defendants) Solicitors: Summer Lawyers (Plaintiff) Evangelos Patakas & Associates (Defendants) File Number(s): 2020/309462