National Australia Bank Limited v Mary Rose Salubre [2023] NSWSC 319

Supreme Court New South Wales

Medium Neutral Citation: National Australia Bank Limited v Mary Rose Salubre [2023] NSWSC 319 Hearing dates: 31 March 2023 Date of orders: 31 March 2023 Decision date: 31 March 2023 Jurisdiction: Common Law Before: Elkaim AJ Decision: 1) On the notice of motion filed by the defendant on 23 March 2023, a stay in respect of the eviction scheduled for 3 April 2023 is refused. 2) The balance of the notice of motion is stood over to 20 April 2023. 3) The defendant has leave to file a Notice of Grounds of Defence prior to 20 April 2023. 4) The defendant is to pay the plaintiff's costs of today's hearing 5) The balance of the costs recoverable in the notice of motion, are stood over to be decided together with the remainder of the notice of motion. Catchwords: APPLICATION FOR STAY – No draft defence – Imminent eviction – One of three properties only affected Cases Cited: GE Personal Finance Pty Limited v Smith [2006] NSWSC 889 Dai v Zhu 2013 NSWCA 412 Category: Procedural rulings Parties: National Australia Bank Limited Pty Ltd (Plaintiff) Mary Rose Salubre (Defendant) Representation: Solicitors: (Plaintiff) Dentons Australia Pty Ltd (Defendant) Di Lizio and Associates File Number(s): 2019/00393388 Publication restriction: Nil

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JUDGMENT 1. The plaintiff, a bank, commenced proceedings against the defendant in December 2019. 2. The plaintiff sought writs of possession for three properties and sums of money allegedly owed by the defendant to the plaintiff. 3. The origin of the dispute lies in loan agreements made in March 2015 and April 2015. The defendant's obligations were secured by mortgages over the three properties. 4. The plaintiff alleged that the defendant was in default of her obligations under the agreements giving rise to its entitlement to seek possession of the properties. 5. The proceedings filed in 2019 lapsed due to lack of service but were reinstated by orders made on 11 October 2021. The defendant was served with the statement of claim on 9 February 2022. 6. A defence to the statement of claim has not been filed to date. 7. On 12 August 2022 the plaintiff obtained orders for default judgment including possession of the three properties. Writs of possession were issued on 23 August 2022. The evictions were scheduled for 18 and 19 October 2022. 8. On 14 October 2022 the defendant filed a notice of motion requesting an urgent stay of the writs of possession. At about the same time the defendant made a complaint to the Australian Financial Complaints Authority (AFCA) about the conduct of the plaintiff. 9. On 17 October 2022 the plaintiff requested the NSW Sheriff to not go ahead with the evictions. The evictions were placed 'on hold' pending resolution of the complaint. 10. The complaint file was ultimately closed causing the plaintiff, on 9 February 2023, to successfully have the stay application dismissed. 11. The three properties I have referred to above are: 1. Unit 4, Rosehill, NSW. 2. Unit 12, Rosehill, NSW. 3. Lidcombe, NSW. 1. The eviction at Unit 12 is now scheduled for 9am on 3 April 2023. The eviction at Lidcombe is scheduled for 21 April 2023. 2. On 23 March 2023 the defendant filed a notice of motion seeking a stay of the evictions. The matter was referred to me, as duty Judge, because of the urgency arising from the scheduled eviction on 3 April 2023. 3. The hearing before me today was concerned only with the eviction scheduled for 3 April 2023. The stay was sought because the defendant says that she has a defence to the plaintiff's proceedings. In addition, she wishes to pursue a cross-claim against the plaintiff. 4. The conditions under which a stay may be granted in circumstances such as the present were set out by Johnson J in GE Personal Finance Pty Limited v Smith [2006] NSWSC 889 at [13]: "Secondly, the basis upon which the stay application is made is significant. As paragraph 20 of the Practice Note makes clear, there are three common circumstances advanced on a stay application: