Australia & New Zealand Banking Group Limited v Soliman [2014] NSWSC 1008

Supreme Court New South Wales

Medium Neutral Citation: Australia & New Zealand Banking Group Limited v Soliman [2014] NSWSC 1008 Hearing dates: 24 July 2014 Decision date: 24 July 2014 Jurisdiction: Common Law Before: Hamill J (as Duty Judge) Decision: (1) The notice of motion is dismissed. (2) The defendant will pay the plaintiff's costs of the motion. Catchwords: CIVIL LAW - MORTGAGES - claim by mortgagee for possession of land - notice of motion - writ of possession issued - application for stay of execution of writ of possession - attempts to refinance - multiple applications for stay - relevant hardship Cases Cited: GE Personal Finance v Smith [2006] NSWSC 889 Category: Principal judgment Parties: Australia & New Zealand Bank (Plaintiff) Yvette Aziz Soliman (Defendant) Representation: Counsel: P J Rodger (Plaintiff) L Craven (Defendant) Solicitors: ANZ Bank (Plaintiff) Bransgroves Lawyers (Defendant) File Number(s): 2013/22204434 Publication restriction: Nil

ex tempore Judgment 1HIS HONOUR: This is an application by the first defendant, Yvette Aziz Soliman, for an order staying the execution of a writ of possession which is scheduled to be executed tomorrow. 2The writ of possession is based around a judgment obtained by the plaintiff in this Court arising out of a loan agreement between the parties which goes back some time and the details of which I need not go into here. 3The application cannot be considered in isolation. In fact, a similar application was made in May 2014 and came before me in the duty list, at which time I ordered that there be a stay of execution of the writ of possession in respect of two properties, one being the residential home of the plaintiff and her family. The other was not so much a stay of a writ but rather the stay of execution of judgment in the sense that I allowed the plaintiff 39 days to complete a contract of sale, which had the effect of forestalling an action which was to take place on commercial premises at Seven Hills. 4The order was granted on conditions, those conditions were not complied with and the order was subsequently revoked. In any event, the effect of that process was that the plaintiff's entitlement to possession was forestalled for a period of time. 5Subsequently the matter came before his Honour Justice Rothman and an application was then made on 27 May 2014, in effect, to stop the auction of the Seven Hills property. It had been said both in evidence before me and, as I understand it, in evidence before his Honour Justice Rothman that there was a contract for sale of land in the sum of $1.6 million in respect of the Seven Hills property. At the time that the matter was before me the plaintiff expressed doubts, to put it mildly, that that contract for sale would ever be finalised because the plaintiff valued the property at considerably less than that. 6There is no doubt that the doubts expressed by the plaintiff at that time were well-founded because after Justice Rothman gave the defendant time to complete the $1.6 million contract for sale it seems that sale never eventuated and ultimately the plaintiff sold the property for an amount of around half of $1.6 million. Meanwhile, as I understand it, the defendant had made attempt to refinance based around the residential premises at Lugarno and the plaintiff proceeded to attempt to enforce the judgment and the outstanding debt which is currently in the vicinity of around $944,000 or $945,000. I note that that is after repayment of the sum or part of the sum that was derived from the sale of the Seven Hills property. 7At the time that I revoked the order staying execution back in May I made it a condition of any future application that it be notified to the plaintiff within a period of 36 hours. The plaintiff is represented here, has provided an extensive affidavit and I do not propose to enforce that condition in the circumstances of the case. Ms Craven, who appears on behalf of the defendant, has presented a cogent argument as to why the defendant is in default of that direction or condition and I can see no prejudice to the plaintiff in my simply overlooking the fact that this application does not strictly comply with that direction. However, the fact that the defendant again comes to the court on the eve of the execution of the writ of possession is a matter that I should and do take into account in determining the orders that are appropriate to make. 8The principles that guide me are summarised in the case of GE Personal Finance Pty Limited v Smith [2006] NSWSC 889. The various categories are discussed by his Honour Justice Johnson at [15] - [16] and [20]. Paragraph 15 in the first category relates to whether there is a real contest as to whether the debt is owed. That is not this case. The second category is where the defendant seeks to refinance so that the interests of the plaintiff or mortgagee can be protected in that way, and the third, which is referred to at [20] of GE Personal Finance, is where there is an intention to sell the property. 9The evidence in the case before me is not that the defendant intends to sell the property but rather that the defendant has continued with the attempts to refinance. In the result, there is placed before me a variety of documents and assertions by the defendant's husband as to amounts that he has secured or hopes to secure by way of refinancing. They include a letter from Westpac Bank dated 23 May 2014 saying that they are prepared to lend an amount of $728,000, the fact that a family friend, Ka Lee is prepared to or has lent them $22,000, the money held in a bank account by the defendant or her husband in the sum of $11,119.57, and finally a letter of offer from a company known as HomeSec Business Finance indicating approval on a conditional basis of a loan of $183,700. There are also incidentals, such as establishment and legal fees and so forth. 10The total amount, taking all of those numbers at their highest, is $944,819.57. The total amount of the debt is about that same amount. It cannot be said in the circumstances that the position of the plaintiff can be protected because of the closeness of those amounts but, more particularly, the document from HomeSec is no more than an indicative approval and it is conditional upon a number of matters, such as satisfactory title searches, satisfactory credit reports, satisfactory due diligence as to value and debt on the property, satisfactory due diligence as to loan purchase and exit strategy. There is also a rather nebulous and general reservation of a right to request further information. 11In light of the history of the matter that has been referred to in argument, including things such as the $1.6 million contract for sale of land and the failure to comply with undertakings made when I granted the stay in May, I have real reservations in accepting that the indicative approval for a loan of $183,700 with those conditions will in fact result in such a loan being advanced. 12If one takes that amount of money out of the equation, and even accepting the balance at its highest and noting that there must at some level be question marks over the Westpac offer, given that it has existed since at least May and possibly has its etiology in documentation in December of last year, then the position of the plaintiff is not protected at all and I am simply not satisfied, I regret to say, that the defendant is in a position to refinance. So that the matter does not fit within that second category of cases referred to in GE Personal Finance at [16] in the sense that the evidence does not sustain a finding that it does. 13The earnest and compelling submissions made by Ms Craven as to hardship factors cannot be gainsaid, and I do not understand Mr Rodgers on behalf of the plaintiff to attempt to gainsay them. The reality is that taking possession of a family home will create hardship. The plaintiff is a mother of five children. The youngest child is an infant. That is a matter of considerable concern to me, but I cannot be persuaded on this third occasion that the matter has been before the court that it provides a justification for making the orders sought and I very much regret that my decision is that the orders sought in the notice of motion are declined. 14The notice of motion is dismissed. The defendant will pay the plaintiff's costs of the motion.