Commonwealth Bank of Australia v Salvato (No.3) [2013] NSWSC 320

Supreme Court New South Wales

Medium Neutral Citation: Commonwealth Bank of Australia v Salvato (No.3) [2013] NSWSC 320 Hearing dates: 12/03/2013 Decision date: 13 March 2013 Jurisdiction: Common Law Before: Garling J Decision: 1. I order that pursuant to r 6.24 of the Uniform Civil Procedure Rules, Victoria Jane Salvato be and hereby is joined as a second defendant in these proceedings. 2. Upon the second defendant giving the following undertakings to the Court: (a) that the second defendant and her children, Ms XX Salvato and Master XY Salvato, will give possession of the land comprised in Folio Identifier XXXXXXX and known as 1/117 Hopetoun Avenue, Vaucluse, New South Wales 2030 to the first plaintiff by vacating the land and the premises on the land on or before 9.00am on 9 April 2013 and by delivering all keys and other implements of access to the premises on the land to the agent of the first plaintiff, Mr Elliott Placks of Ray White Double Bay, or such other person as the first plaintiff's solicitors may direct in writing at 9.00am on 9 April 2013, such delivery to occur on the land; and (b) to pay to the first plaintiff $2,000 per week starting on 13 March 2013 and continuing whilst ever the second defendant retains possession of the property. Such payment to be deposited into Commonwealth Bank of Australia account BSB XXXXXXX, account number XXXXXXX in the name of Mimmo Salvato marked with the reference "Victoria Salvato" by no later than 12.00pm on the Wednesday of each week starting at 12.00pm on Wednesday 13 March 2013; and (c) to not make any further application for a stay of the execution or other enforcement of the first plaintiff's writ of possession in these proceedings; and (d) upon the second defendant giving the usual undertaking as to damages, order that the execution of the writ of possession for the land is stayed until 10.00am on 9 April 2013 or until such time as the second defendant complies with the undertaking (a) above, whichever happens first, with liberty to the first plaintiff to reschedule the execution of the writ of possession forthwith, such execution not to take place before 10.00am on 9 April 2013. 3. I order that Order 2 is to be automatically vacated if the second defendant fails to comply with undertakings (a) and (b) above. 4. I stand the proceedings over for further directions before me at 9.30am on 11 April 2013. 5. I grant the parties liberty to apply on 24 hours notice. 6. I order the second defendant to pay to the first plaintiff by 5.00pm on 13 March 2013: (a) the wasted costs of scheduling the execution of the writ of possession, such costs fixed in the amount of $567; (b) the first plaintiff's costs of this application fixed in the sum of $2,500, such costs to be paid by depositing the amounts into the Commonwealth Bank of Australia's account BSB XXXXXX, account number XXXXXX in the account name of Mimmo Salvato marked with the reference "Victoria Salvato" (as referred to in undertaking 2(b) above). 7. I further order that the second defendant is to permit access to the property and to do all things necessary to enable such access by any employee, contractor or agent of the first plaintiff to take such steps as it considers appropriate to prepare for the marketing of the land and premises providing that 72 hours' notice is given to the second defendant either by letter, email or text message directly to her or else by letter or email to her solicitor, Mr Jim Dai of Wisdom Lawyers, of the time at which access is required. Catchwords: PRACTICE AND PROCEDURE - Urgent application for stay of Sheriff's eviction notice pursuant to a writ of possession - Significant hardship in circumstances where occupier is unaware of eviction notice - Balancing the rights attached to a writ of possession against the reasonableness of a Court order. Legislation Cited: Civil Procedure Act 2005 Uniform Civil Procedure Rules Cases Cited: Commonwealth Bank of Australia v Salvato, Unreported, 3 December 2012 Category: Procedural and other rulings Parties: Commonwealth Bank of Australia (P1) CBFC Limited (P2) Mimmo Salvato (D1) Victoria Salvato (D2) Representation: Counsel: D A McLure (P1) J Hancock (D1) D Allen (D2) Solicitors: Gadens (P1) Hancocks (D1) Wisdom Lawyers (D2) File Number(s): 2011/143979