National Australia Bank Limited v Ricardo Roura Damelian [2013] NSWSC 792

Supreme Court New South Wales

Medium Neutral Citation: National Australia Bank Limited v Ricardo Roura Damelian [2013] NSWSC 792 Hearing dates: 6 and 7 June 2013 Decision date: 07 June 2013 Jurisdiction: Common Law Before: Slattery J Decision: Stay of a writ of possession declined. Catchwords: REAL PROPERTY - possession of land - application for a stay of a writ of possession - hardship grounds including applicant's health problems - applicant and his wife organised a lease of an alternative property - lease not available for another six weeks - proceeds of sale of property will not satisfy judgment debt - extra six weeks will accrue further interest of more then $74,000 - whether hardship that applicant will need to move twice - HELD: stay upon a writ of possession declined. Cases Cited: GE Personal Finance Pty Limited v Smith [2006] NSWSC 889 Category: Principal judgment Parties: National Australia Bank (Plaintiff) Ricardo Roura Damelian (Defendant) Representation: Counsel: Plaintiff: Justin Williams Defendant: self Allens (Plaintiff) Ricardo roura Damelian (Defendant) File Number(s): 2012/00077129

EX TEMPORE Judgment 1Mr Ricardo Damelian and his wife Jacqueline have lived in a harbourside apartment in McMahon's Point ("the McMahon's Point property") for many years. But as part of a larger corporate insolvency Mr Damelian was declared bankrupt on 8 November 2012. Mr Damelian's trustee in Bankruptcy Mr Andrew Wily of Armstrong Wily, Chartered Accountants entered judgment by consent on 28 November 2012 for possession of the McMahons Point property. 2The following day the Bank, the plaintiff in these proceedings, obtained an order for possession of the McMahons Point property. A writ for possession of the property was issued on 4 April 2013. 3Mr Damelian has owned these apartments for 27 years. He says that due to the loss of his business and related financial difficulties he has not been able to make repayments pursuant to the mortgage on the property. Much of that can be accepted. It seems fairly clear that the default and the bankruptcy coincided with the collapse of Mr Damelian's larger business interests. 4Following upon the issue of the writ of possession in April this year on 13 May the Sheriff sent Mr Damelian a letter warning him that on Monday 17 June, some ten days from now, action would be taken to evict Mr Damelian without further warning from the McMahon's Point property. Mr Damelian appreciates, that as from Monday 17 June he may have to face an eviction from the property unless he and his wife have made arrangements to vacate the property and remove his possessions. 5To Mr Damelian's credit shortly after 13 May he made enquiries of the Sheriff's office at North Sydney about the notice to vacate. That led him to speak to the solicitors for the Bank, the mortgagee in possession. He then spoke with the agent for the mortgagee in possession, Mr Sherman and Mr Sarantinos both of Ferrier Hodgson. 6Mr Damelian's application today is for a stay on the execution of the writ for possession. He seeks a stay for a period of approximately six weeks until 31 July. He does so in an affidavit that says that he will not make another application for a stay. The stay is opposed by the Bank. Mr Damelian appears in person to pursue the stay in the Common Law duty list. Mr Williams of counsel appears for the Bank to oppose the stay. 7The matter has come on at very short notice through the Registrar yesterday. It was heard for a short period about 4pm yesterday and resumed shortly after noon today.