Supreme Court New South Wales Medium Neutral Citation: Perpetual Limited v Dilati [2011] NSWSC 441 Hearing dates: 6 May 2011 Decision date: 06 May 2011 Jurisdiction: Common Law Before: Johnson J Decision: Stay of execution of writ of possession granted and consequential orders made. Catchwords: PRACTICE AND PROCEDURE - claim for possession of land following mortgage default - default judgment given and writ of possession issued - application by occupier of property (not the Defendant) for stay of execution of writ - claim that Applicant and Defendant had entered into agreement for purchase of property - Applicant and family in occupation of property since August 2009 - claim by Applicant that notice not given of Plaintiff's claim for possession - discretionary considerations - stay granted Category: Interlocutory applications Parties: Perpetual Limited (Plaintiff) Marwa Dilati (Defendant) Khalid Ali Khalid (Applicant) Representation: Counsel: Ms N Bearup (Plaintiff) Mr MW Young (Applicant) No appearance by Defendant Solicitors: Gadens Lawyers (Plaintiff) Pope & Spinks (Applicant) VA Lawyers (Defendant) File Number(s): 2009/296958 Publication restriction: Judgment 1JOHNSON J : Pursuant to a Notice of Motion dated 6 May 2011, the Applicant, Khalid Ali Khalid, seeks urgent relief with respect to the imminent execution of a writ of possession by the Sheriff concerning premises at 42 Banksia Road, Greenacre. 2The Plaintiff, Perpetual Ltd, commenced proceedings in the Possession List of the Common Law Division against Marwa Dilati, the Defendant, seeking an order for possession of the property at 42 Banksia Road, Greenacre, together with judgment in a quantified sum. Those proceedings were commenced by Statement of Claim filed on 12 November 2009. In due course, it seems that default judgment was obtained and eventually a writ of possession issued with respect to the subject property. That writ is to be executed next Monday, 9 May 2011. 3There is, as well, on the Court file a document which is said to be a consent judgment as between Perpetual Ltd and Marwa Dilati, in which orders are agreed to by the parties giving the Plaintiff possession of the subject property and ordering the payment of the sum of about $550,000.00.00. 4The present Applicant is not a party to the principal proceedings. Indeed, amongst the orders which he seeks is an order that he be joined as a party to the proceedings. 5The Plaintiff opposes the orders sought in the Notice of Motion, including a stay of execution of the writ of possession and submits that the Notice of Motion ought be dismissed. 6There are some unusual features to the application. The Applicant asserts in an affidavit sworn 5 May 2011 that he has been in continuous occupation of the premises since no later than August 2009. He asserts that he entered into a type of agreement with the Defendant to purchase the property, and that substantial sums of money have been paid by the Applicant to the Defendant over a number of years in that respect. There are a number of documents attached to the affidavit of the Applicant, some of which provide some support for the payment of money, although precisely for what purpose is not clearly and definitively identified. There is at least one document which is in Arabic, and there are also some copies of cheques. 7The Applicant asserts, in effect, that he has been purchasing the subject property and, as I have said, sums of money have been paid in that respect to the Defendant. 8The Statement of Claim was filed on 12 November 2009. By that time, on the Applicant's evidence, he and his family were in occupation of the premises. 9There is an affidavit on file of a Kris Sabatino sworn 25 January 2010 stating that, on 16 November 2009, Ms Sabatino served the occupiers of 42 Banksia Road, Greenacre with a Notice to Occupier and copy of the Statement of Claim by delivering the documents to, and leaving them under the door of the security address. Thus, there is some evidence of service in accordance with the Rules in that form. 10The affidavit of the Applicant, fairly read, asserts a lack of knowledge of the proceedings until a date in March 2011, when the Sheriff's Notice to Vacate came to the attention of the Applicant, that Notice being dated 23 March 2011. 11The Plaintiff contends that the affidavit of Ms Sabatino demonstrates service and, therefore, the Applicant has been on notice. There is a live issue, on the face of it, as to whether there is actual notice on the part of the Applicant and there does seem to be at least a controversy in that respect. 12Once the Applicant became aware of the Sheriff's Notice to Vacate, some action was taken. For a period in March, that action involved some communication with the Defendant and members of the Defendant's family, seeking a form of alternate dispute resolution utilising what was described as Islamic rules. 13A point was reached where the Applicant instructed a solicitor and, on 5 April 2011, the Applicant's solicitor wrote to the solicitors for the Plaintiff and the solicitors for the Defendant indicating that the Applicant claimed an interest in the property. There has been no written response from the solicitors for the Defendant to this correspondence. The solicitors for the Plaintiff have responded, indicating that any claimed interest of that type was a matter between the Defendant and the Applicant, and did not bear upon the Plaintiff. 14In effect, the Plaintiff's solicitor stated that the Plaintiff had brought proceedings based upon its interest under a registered mortgage, and that it had obtained orders from the Court and those orders were to be enforced. The last piece of correspondence from the Plaintiff's solicitor to the Applicant's solicitor is dated 28 April 2011. 15Today, the Applicant moves the Court for certain urgent relief. The Plaintiff has been notified and has appeared to resist the application. The solicitor for the Defendant was served this morning and there has been no appearance of the Defendant. 16The Plaintiff submits that whatever the controversy may be between the Applicant and the Defendant, it does not bear in any way upon the Plaintiff's entitlement to enforce the orders of the Court, one of which involves the execution of the writ next Monday. The Plaintiff submits that there is no conceivable defence or cause of action which the Applicant can call in aid to resist the Plaintiff's entitlements, and the orders already obtained by the Plaintiff in the proceedings. 17Submissions were also made concerning aspects of the documentation attached to the affidavit of the Applicant. 18In short, the Plaintiff says that there is no proper basis for a stay, let alone any order that the Applicant be joined as a party to these proceedings which are, in effect, over. 19Counsel for the Applicant submits that the Court ought grant a stay and make orders which would allow the Applicant a limited opportunity (at least) to obtain additional information, with a view to utilising these proceedings as a means to vindicate such rights as he may have. It was acknowledged that the nature of the alleged agreement between the Defendant and the Applicant was, at this stage, a little unclear. However, it was said that there are features of it which may allow the Applicant to contend, among other things, that there was a constructive trust as between those two parties. How such an agreement may operate against the Plaintiff at this point is not easy to articulate, but it is said on behalf of the Applicant that there are legitimate issues which the Applicant ought to be entitled to explore. 20It is said that he has been the occupier of these premises since a date prior to the commencement of the proceedings in this Court. His evidence is that he had no notice of them, and that when he did obtain notice of them he has taken action, including obtaining legal advice and then approaching the Court. 21It is acknowledged that the relevant mortgage dates from October 2003 and, on any view, predates such agreement as there may be between the Defendant and the Applicant. As I say, the Plaintiff emphasises that aspect in support of the argument, that whatever has happened between the Applicant and the Defendant does not touch on its rights and entitlements. 22A further feature of the application is that the Applicant states, in paragraph 29 of his affidavit, that even if he does not seek to defend these proceedings, he is likely to complete the purchase of the Defendant's interest in the property and to arrange to refinance the Plaintiff's mortgage. He asserts that he has substantial financial resources at present. He has readily available funds exceeding $100,000.00. He says that he has funds on deposit which are available to him and his family within the next 28 days and which exceed $300,000.00. He states that he has started making enquiries about his ability to raise sufficient funds for the remainder of the amount owing on the Plaintiff's mortgage, and believes he is able to raise the necessary money within two months from today. He states that he lives in the property with his wife and six children and his daughter is due to be married in the next three weeks. These are practical considerations bearing upon the execution of the writ on 9 May 2011. 23The question of whether the execution of the writ of possession ought be stayed involves a discretionary determination. There are unusual features to this case. The application has been made by someone who is not a party to the proceedings, although the presently unchallenged evidence is that he has been in occupation of the premises with his family for an extended period. 24The alleged agreement between the Applicant and the Defendant has some curious features but, nevertheless, there is evidence to support it. It is difficult at this stage to conceptualise how it can be called in aid as a means to fend off the Plaintiff's rights, but arguments have been advanced which, it seems to me, the Court ought have regard to in conjunction with the other matters advanced on the application for a stay. 25I think the Applicant is entitled to what would be a limited opportunity to explore his position with respect to the litigation, and then to make a realistic assessment as to whether any defence could be advanced. 26Further, there is an indication that apart from all that, he would seek to pay out the Plaintiff if given the opportunity. Of course, claims of that type are frequently made when stays are sought in Possession List matters. However, the present case is different from the typical application. It is not the Defendant making perhaps a belated claim that they can raise money to pay out the debt. The Applicant is in a somewhat different position and, on the face of it, on the evidence, he is prepared to take substantial steps to try and retain possession of the property in which he and his family have lived for some time. 27I am persuaded that the proper discretionary outcome is to maintain the status quo by staying the execution of the writ, and to allow the Applicant an opportunity to assess what is to happen next. 28I will not make any order today joining the Applicant as a party to the proceedings. However, I will make orders that are designed to allow the Applicant to acquire a clearer and more complete understanding of what has happened between the Plaintiff and the Defendant for the purpose of determining what step he takes. 29I am conscious that the staying of the execution of the writ of possession involves cost to the Plaintiff and further delay. The stay of the execution of the writ will mean, in practice, that it will be several weeks before the Sheriff could again move in this respect. If the Applicant wants to obtain any further stay, and if the Plaintiff opposes it, then it will be necessary for the Court to determine whether a further stay should be granted. By that time, a Judge of the Court will have more information from the parties and the position will be somewhat clearer than it is today. 30All I am doing at this stage is making the primary determination that there ought be a stay and an adjournment for a relatively short period. 31I do propose to stay the writ until 23 May 2011. The Applicant is not a party to the proceedings and I will make orders which will allow the Applicant to have access to the Court file, and to have access to the Court's electronic records in the same fashion as if he was a party to the proceedings. 32Application is made by counsel for the Applicant for an order that the Plaintiff provide copies of the loan documentation to the Applicant so that the Applicant may assess that material. It was submitted, reasonably, for the Plaintiff that such an order would involve documents containing personal information with respect to the Defendant. The Defendant has not been heard with respect to that proposed order. There is force in that submission. 33The orders that I am prepared to make is one that will direct the Applicant to give the Plaintiff notice of the documents which the Applicant seeks from the Plaintiff, and also that the Applicant notify the Defendant's solicitor that these orders have been made. 34When the matter is next before the Court on 23 May 2011, it might be expected that the Applicant will (in the absence of prior agreement with the parties), move for an order that the Plaintiff provide the documents to the Applicant. If the Defendant does not appear and seek to resist such an order, the Court on the next occasion may be prepared to make such an order. The Plaintiff ought be in a position, having gathered the documents, to comply with such an order promptly. However, I make no such order today as there is a legitimate question raised about the prospect of there being personal or confidential information concerning the Defendant held by the Plaintiff. 35For these reasons, I am satisfied that the Court should make a number of orders. 36I make orders 1 to 7 in accordance with the Short Minutes of Order which I have signed and dated today. The matter will be next before the Duty Judge at 10 am on 23 May 2011. 37I direct that the orders be taken out forthwith. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 May 2011