Perpetual Limited v Moussa [2008] NSWSC 22

New South Wales Supreme Court

CITATION : Perpetual Limited v Moussa [2008] NSWSC 22

HEARING DATE(S) : 24 January 2008

JUDGMENT DATE : 24 January 2008

JURISDICTION : Common Law

JUDGMENT OF : Campbell JA

EX TEMPORE JUDGMENT DATE : 24 January 2008

DECISION : Execution of writ of possession stayed.

CATCHWORDS : MORTGAGES - remedies of the mortgagee - default judgment for possession of property obtained - second application for stay of writ of possession - no evidence of how value of mortgaged property compares to mortgage debt - extension granted on basis of hardship

Perpetual Limited, formerly known as Perpetual Trustees Australia Limited - Plaintiff PARTIES : Nabil Moussa - First Defendant Ayse Evren Moussa - Second Defendant

FILE NUMBER(S) : SC 14333/07

COUNSEL : G Koning, solicitor - Plaintiff J Nicopoulos, solicitor - Defendants

SOLICITORS : Dibbs Abbott Stillman - Plaintiff Nicopoulos Associates - Defendants

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DUTY JUDGE LIST

CAMPBELL JA

THURSDAY 24 JANUARY 2008

14333/07 PERPETUAL LIMITED, FORMERLY KNOWN AS PERPETUAL TRUSTEES AUSTRALIA LIMITED v NABIL MOUSSA

JUDGMENT – Ex Tempore 1 HIS HONOUR: This is an application that an execution of a writ of possession granted on or about 10 January 2008 be stayed for 28 days. 2 The applicant, Mr Nabil Moussa, is, with his wife, the registered proprietor of land in Cabarita Road, Concord. It is the site of a house where they live. He has at some stage had four children, although there is no evidence about how many of them are at home at the moment. 3 The proceedings were begun by filing a statement of claim on 23 August 2007. Default judgment was obtained on 19 November 2007 for possession of the property, and for a liquidated debt of a little more than $1,050,000. A notice to vacate was issued by the Sheriff on 4 December 2007. It fixed Thursday 13 December 2007 as the date for the property to be vacated. 4 On 12 December 2007 the defendants obtained an ex-parte stay of the eviction scheduled for the next day, with the matter being stood over to 20 December. The basis upon which that stay was obtained included a statement by Mr Nabil Moussa that: "… in or about … February this year the New South Wales Crime Commission confiscated [a particular sum of money], and as a result I had no working capital to use in my investments. The proceedings as between the Crime Commission and myself are currently before the courts and are being defended by me." 5 There is no evidence before the Court, beyond that, about the status of those proceedings, or about what, if any, orders have been made as a result of them. Mr Moussa attributes to the proceedings the cause of his falling into arrears and experiencing severe financial difficulties. 6 Annexed to his affidavit of 11 December 2007 was a letter, unsigned, on the letterhead of Financial Network Solutions. There was provision in the letter for it to be signed by a Mr Pierre Moussa. There is no evidence about whether there is any connection between Mr Nabil Moussa and Mr Pierre Moussa. Concerning that, evidence of a lack of connection would have been a particularly relevant matter to put before the Court. The letter purported to state that an application for a home loan of $1.3 million had been approved in principle subject to provision of adequate security, and "is based on the understanding that there is no significant change in your financial situation." 7 The Court is left uninformed about from what financial situation there must be no significant change. In particular, it would be of quite some relevance whether the financial situation in question was the financial situation before, or after, the action taken by the Crimes Commission. 8 On the return of the notice of motion seeking a stay, on 20 December short minutes of order were entered by consent. On 18 December 2007 a solicitor for Mr Nabil Moussa put on evidence of a conversation he had with Mr Pierre Moussa on 18 December 2007, in which Pierre Moussa told him, "I have made the application for finance and everything looks good to go. However, I am still waiting on a valuation, and because of the value of the property only a limited number of valuers can do it." 9 I pause to say that I have difficulty in understanding, without explanation from the evidence, why it is that there is only a limited number of valuers capable of valuing a suburban house in Sydney. There is evidence that, in that conversation on 18 December, Mr Pierre Moussa estimated that, "If everything goes well, I think a month or so will be enough to settle this matter." 10 The matter came before the court on 20 December 2007 when short minutes of order were entered by consent. Under those short minutes, the plaintiff agreed to apply for a new eviction date for the property. It agreed to "cancel the new eviction date" if the defendants paid the full arrears, default interest and costs owing under the mortgage in cleared funds at least 48 hours prior to the scheduled time of the new eviction. The arrears, at present, are of the order of $78,000. 11 Under those short minutes the plaintiff also agreed to cancel the new eviction date if the defendants provided to the plaintiff a letter of unconditional refinance approval from a lending institution for an amount sufficient to repay the full debt owing on the mortgage at least 48 hours prior to the scheduled time of the new eviction. There were some other terms that I need not mention. The new eviction date was obtained from the Sheriff, being tomorrow, 25 January 2008. 12 The present situation is that the current total outstanding balance of the loan account secured by the mortgage is a little over $1,070,000 plus costs. The arrears owing on the mortgage have not been repaid. 13 Mr Moussa's solicitor deposes to a conversation that he had with Mr Nabil Moussa on 23 January 2008, in which Mr Moussa told his solicitor that he had received the notice of eviction. That was apparently news to the solicitor. 14 Mr Moussa's solicitor then had a discussion with his client about Mr Moussa's plans for raising money. One plan was to sell a car that Mr Moussa owned, from which he estimated he would receive about $30,000. So far as the rest of the arrears were concerned he told his solicitor, "I should be in a position to pay that off in about a month's time when I've got some sales going through." 15 The solicitor then telephoned Mr Pierre Moussa, and was informed that Mr Pierre Moussa was still waiting on a valuation. There was no explanation for why the valuation had not previously been obtained, or why it was that the estimate that Mr Pierre Moussa had given back in December, of the time needed to obtain a valuation, had gone astray. 16 I regard this application for a stay as one where the evidence is far from satisfactory. There is no evidence of Mr Moussa's capacity to repay. There is no affidavit evidence from a broker concerning the terms on which refinance would be available. There is no unconditional offer of finance. There is no evidence of his capacity to service any refinanced loan. There is no evidence about how extensive any orders obtained by the Crimes Commission were, and in particular whether any such orders affect any equity that Mr Nabil Moussa has in the house. That would be relevant to whether it was in practice possible to refinance the mortgage, for if the co-operation of the Crimes Commission was needed to refinance the mortgage there is no evidence about whether it would be forthcoming. 17 On the other side of the record there is no evidence from the plaintiff that it has run out of equity in the property, or is in imminent danger of running out of equity in the property. While Mr Moussa seems to have achieved little towards a refinancing, I am conscious of the fact that the Christmas vacation sometimes makes business go slower than it does in times outside the Christmas vacation. I shall grant an extension solely on the basis of hardship. 18 I order that the execution of the writ of possession granted on 10 January 2008 be stayed to and including Thursday 21 February 2008. I should make clear that the defendant has succeeded in this application by the thinnest of margins. 19 I will reserve the costs of the notice of motion. These orders may be entered forthwith. 20 I note that the parties will cooperate about making the property available so that the plaintiff can cause a valuer to value it, if the plaintiff, upon further reflection, so desires. **********