Supreme Court New South Wales Medium Neutral Citation: National Australia Bank v Dragisa Marinkovic [2015] NSWSC 675 Hearing dates: 29 May 2015 Date of orders: 29 May 2015 Decision date: 29 May 2015 Jurisdiction: Common Law Before: Hamill J Decision: Stay of execution of writ of possession continued on conditions (see para [11]) Catchwords: CIVIL LAW – Stay of writ of possession- contract for sale entered by defendant – mortgagee's position protected – no question of principle Category: Principal judgment Parties: Plaintiff - National Australia Bank Defendant - Dragisa Marinkovic Representation: Solicitors: Plaintiff – Ms Anna Chochula Defendant – In person, Mr Dragisa Marinkovic File Number(s): 2014/187908 EX TEMPORE Judgment 1. HIS HONOUR: On 19 February 2015 RS Hulme AJ made certain orders staying the proceedings of judgment in proceedings 2014/00187908 and directing that the National Australia Bank take no further steps in relation to the demolition and damage of certain properties hitherto owned by the defendant. 2. The case has its origins in a loan advanced by the plaintiff, that is the National Australia Bank, to the defendant. That loan was secured over two properties. Although those properties have between them four titles, they can be conveniently referred to as a property at 26 Maitland Road, Mayfield and another at 6-14 Maitland Road, Mayfield. 3. There was a dispute, which is no longer really relevant, as to whether or not the defendant was ever served with the process leading to the bank taking possession of the properties. As I say, that dispute is no longer pertinent because at least by 19 February 2015 when RS Hulme AJ made the orders I have referred to, all parties were well and truly aware of the precarious position that the defendant was in. 4. The plaintiff comes before me, as Duty Judge, seeking that the original Notice of Motion seeking the stay be dismissed. In support of that Notice of Motion, it relies on an affidavit of the process server of no current relevance and an affidavit of its solicitor, Anna Chochula, sworn 29 May 2015. That affidavit helpfully sets out the history of the matter and also very fairly annexes documents showing what I accept to be the genuine attempts on the part of the defendant to sell the property at 6-14 Maitland Road, Mayfield. 5. In particular, there is annexed to Ms Chochula's affidavit a contract for the sale of land with a purchase price of $650,000. There was a deposit of $65,000 which is held in a trust account in the usual way. That Contract for Sale ought to have completed but, for reasons that at the moment are unclear to me, the proposed purchaser (an entity called Maitland Road Pty Limited) sought to delay the settlement. As a result, the settlement was not completed and that failure to complete the sale is what prompted the plaintiff to come to court today. The defendant's son, Miroslav, appears and speaks for him, and also indicates a willingness to assist his father if there is any shortfall between the sale price and the debt to the Bank. 6. In that regard, Ms Chochula tells me, and I accept from her for the present purpose, that the total debt to the bank is in the vicinity of $750,000. There are also council rates outstanding in the vicinity of $60,000. Those figures are not precise but I accept that they are approximately accurate. 7. On the other side of the ledger, the bank's estimate, which is not based on a formal valuation, is that the property at 6-14 Maitland Road is valued at $650,000. That of course is reflected by the proposed sale price with that contract being entered. The property at 26 Maitland Road is estimated by the bank, again in the absence of a formal valuation, to be worth $200,000. The total value of the two properties is therefore $850,000. That leaves a very slim margin between the amount that the bank is owed and the amount of the security it holds on those two properties. 8. For that reason, I have significant sympathy with the plaintiff's position. But for my acceptance that the defendant and his family are making genuine efforts to complete the sale and to repay the bank I would not have continued the stay. However, I am persuaded that the stay should continue for a period to allow the possible completion of the sale. 9. Mr Miroslav Marinkovic has also indicated that he has funds available to make up the shortfall between the purchase price of 6-14 Maitland Road and the indebtedness to the bank and that the proposal that the family would then put forward is that the defendant would be able to retire and use 26 Maitland Road as an investment property. 10. In all the circumstances, my finding is that it is appropriate to continue the stay for a short period to enable the completion of the sale and the defendant and his family to liquidate its debt to the plaintiff. 11. So the orders I make are these. That the stay of proceedings ordered by RS Hulme AJ on 19 February 2015 is to continue until Friday 19 June 2015. That stay is conditional upon the following: 1. The defendant is to take all steps necessary to complete the sale of 6-14 Maitland Road, Mayfield based on the Contract for Sale of that property dated 21 January 2015. 2. Within seven days the defendant is to provide the bank with evidence that Miroslav Marinkovic agrees to pay and has the capacity to pay the shortfall between the defendant's debt to the plaintiff and the sale price of 6 to 14 Maitland Road, Mayfield. 3. The parties have liberty to restore the matter to the list on three days' notice, 4. The proceedings are adjourned until Friday 19 June 2015. 5. Costs are reserved. ********** Amendments 16 June 2015 - Plaintiff's solicitor's name corrected: "Anna" not "Anita" Defendant's son's name corrected: "Marinkovic" not "Marinnovic" 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: 16 June 2015