Australia and New Zealand Banking Group Limited v RQA Accountants Pty Limited [2013] NSWSC 985

Supreme Court New South Wales

Medium Neutral Citation: Australia and New Zealand Banking Group Limited v RQA Accountants Pty Limited [2013] NSWSC 985 Hearing dates: 19 June 2013 Decision date: 19 June 2013 Jurisdiction: Common Law Before: Adams J Decision: 1. The application for a stay is refused. 2. The balance of the motion is otherwise dismissed. 3. The Applicant is to pay the respondent's costs of this motion. Legislation Cited: Small Business Commissioner Act 2013 Category: Interlocutory applications Parties: Australia and New Zealand Banking Group Limited (Plaintiff/ Respondent) RQA Accountants Pty Limited (First Defendant) Shripat Surana (Second Defendant/ First Applicant) Savita Surana (Third Defendant/ Second Applicant) Representation: Counsel: S Docker (Plaintiff/ Respondent) Solicitors: Kemp Strang (Plaintiff/Respondent) File Number(s): 2012/226249

eXTEMPORE Judgment 1Mr Shripat Surana by notice of motion seeks amongst other things a stay of execution of a writ of possession in respect of which the plaintiff obtained leave to issue forthwith by a judgment of Adamson J on 12 March 2013, in which her Honour struck out the defence filed by the applicant to the present motion and the cross-claim together with an ancillary notice of motion. The background facts are sufficiently set out in her Honour's judgment and I do not need to refer to them again. 2The notice of motion, as I have said, seeks a stay of that writ. The grounds for that application concern the personal health issues of Mr Surana, what I describe as family, home, religious/culture values and privacy issues, the nature of the credit facilities and their having been used to secure certain premises involving the premature termination of a lease of business premises, an unsuccessful attempt to negotiate with the bank and the removal of Mr Surana's name from the membership of CPA Australia for non-payment of subscription fees. 3As to the first of these the affidavit of Mr Surana states: "4. On 3rd April 2013 which is about 13 days after the date of Interlocutory Order of Adamson J of 21 March 2013, I had advised my Medical Practioner Dr. Muni Kumar who has detailed information about my ongoing personal health issues in ongoing legal matters, that I suffered unforeseen/unexpected sudden onset of health conditions on the date of hearing of the matter before her Honour Christine Adamson on 12 March 2013 and broadly mentioned about the symptoms to her Honour during the hearing. I also stated to Dr. Kumar that owing to sudden onset of Symptons and temporary decision making incapacity and communication skills; it is more likely than not that I would have unintentionally missed out to make a specific request for deferral of the hearing of the matter to a new date instead of 12 March 2013, which could have possibly led to a better presentation of the case by me in the position of an unrepresented litigant. 5. On 3rd April 2013, I also stated to Dr. Kumar that regardless of my temporary incapacity, Adamson J could have possibly made a reasonable offer to postpone the matter particularly when she knew that I was suffering from Vertigo Symptons on the date of hearing to which Dr. Kumar responded "I was not present on the Hearing Date and therefore I cannot comment." 6. On 3rd April 2013, Dr. Kumar wrote a letter to Psychologist Shalav Mehta who had counselled me on several occasions in the past and stated as follows: "Mr. Surana continues to experience severe psychological issues with ongoing legal issues. He has also developed Symptons of Benign Positional Vertigo and Neck Symptons which could be functional. He could benefit from further counselling sessions. I have done a renewed mental health plan. Please do the needful." (See Annexure Marked "I") 7. Subsequent to Dr. Kumar's letter, I received a phone call from Psychologist Shalav Mehta who declined to be of help on this occasion due to other pressing commitments and offered me to refer to an alternate Psychologist which was declined by me due to my perceived notion of having to repeat the whole state of affairs to a new Psychologist causing more harm to my stressful conditions than being of much benefit." 4It is evident that these conditions are not material to whether the writ of execution ought to proceed. I should state that Mr Surana appeared before me today and although I accept that he might from time to time develop the symptoms described in paragraph 6 of the above quotation it was not evident that he had any significant medical condition of the type which could justify a stay of the writ. 5As to the family home, religious, culture values and privacy issues Mr Surana's affidavit refers to the use of the relevant premises as a family home, accommodating him and his wife and two young children and that the anguish, pain and suffering which would result from eviction in the culture of his family is so considerable that the writ should be stayed. I readily accept that any persons, particularly those with family responsibilities, who are evicted from their family home will suffer significant anguish and anxiety. Whether this is greater for someone who is within the Indian culture or not I am unable to say. However, the terms of the contract which have brought about the present position were entered into freely and knowledgeably by the present applicant and whilst I am sympathetic for his personal position and that of his family those matters do not justify a stay of the writ of execution. 6The next matters relating to the use of the premises and the termination of the lease were considered by Adamson J and it is not appropriate for me to revisit that issue. At all events there is nothing in those matters which would justify the stay sought. 7Taking next the question of negotiation Mr Surana cites the Small Business Commissioner Act 2013 as creating obligations in the bank to mediate his dispute. That Act has not yet been proclaimed but even if it were in effect it does not materially change the position having regard to the pre-conditions prescribed by the Act for compulsory mediation. A voluntary mediation was sought which the bank declined, as was its legal right. 8So far as legal representation is concerned, I accept what Mr Surana says that he has been unable to obtain legal advice or help. This is unfortunate but there is nothing in the material which he has referred to, in particular the factual matters upon which he relies, which might, were he to obtain the services of a lawyer, be cast in such a light as to assist his stay application. At all events, the fact that a debtor is unable to obtain legal advice, certainly where there is no apparent legal basis for the relief sought, cannot affect the matter. 9I have mentioned further hardship in the removal of the applicant from the membership of CPA Australia. I would accept that that may well affect his ability to obtain or earn funds. However that is not relevant to the application, the very point of which is to repay a debt by executing a security when other financial resources fail and there is no reasonable prospect that sufficient resources can be obtained which will enable payment of the debt. 10Mr Surana complains that the bank has not complied with its own processes for dealing with complaints, in particular by refusing to agree to a stay of the writ of execution. He submits that the bank is obliged to undertake its complaint resolution procedure before deciding whether or not to refuse his application to delay eviction. It is sufficient to say that there is nothing in the bank's processes which gives rise to the legal obligation contended for. 11It follows therefore that the application for a stay must be refused. 12The notice of motion seeks other relief relating to refund of monies and the reversal of what are described as "back office debit costs" and the alleged unfairness of treatment by bank staff of the applicant. Those are not matters susceptible of consideration in an application of this kind and therefore are necessarily disregarded. 13The respondent seeks costs of this application. The applicant submits that I should not make such an order since he was unaware that he would, if he lost his notice of motion, be obliged to pay the bank's costs and if he had been aware he might not have brought the application. 14It is sufficient to say that this is not a ground for varying the usual order. Accordingly, the applicant should pay the respondent's costs of this application.