Supreme Court New South Wales Medium Neutral Citation: St George Bank – A Division of Westpac Banking Corporation v Doueihi (No. 2) [2015] NSWSC 714 Hearing dates: 5 June 2015 Date of orders: 05 June 2015 Decision date: 05 June 2015 Jurisdiction: Common Law Before: Davies J Decision: The Defendant's application to stay the auction is dismissed Catchwords: MORTGAGES – rights of the mortgagee – further application to stay mortgagee's auction of the property – no additional evidence – no unconditional offer of finance – no offer to redeem mortgage – application refused Cases Cited: Inglis v Commonwealth Trading Bank (1972) 126 CLR 161 Parist Holdings Pty Ltd v Perpetual Nominees Limited [2006] NSW ConvR 56-161 St George Bank – A Division of Westpac Banking Corporation v Doueihi [2015] NSWSC 709 Category: Procedural and other rulings Parties: St George Bank – A Division of Westpac Banking Corporation (Plaintiff) Peter Doueihi (Defendant) Representation: Counsel: No appearance (Plaintiff) In person (Defendant) Solicitors: Kemp Strang (Plaintiff) Unrepresented (Defendant) File Number(s): 2013/281267 Judgment 1. On 4 June 2015 the Defendant applied to stay the holding of an auction by the Plaintiff for property at 1/24A Batty Street, Rozelle, such auction being scheduled for Saturday 6 June 2015. The basis of that application was that a friend of the Defendant, a Mr Corrado Fedeli, was prepared to borrow the money to purchase the property effectively for the Defendant and his family to live in. The earlier history of the matter is contained in the judgment of Justice Hall of 9 January 2015, and my assessment of the application on 4 June is found in my judgment of that day: St George Bank – A Division of Westpac Banking Corporation v Doueihi [2015] NSWSC 709. 2. The Defendant now applies again to stay the auction. The basis for that is now what appears to be a letter from Sydney Wyde Mortgage Management which is identical with the letter from that company tendered on the last occasion apart from the fact it is now addressed to the Defendant and Mr Fedeli, and they are described together as the borrowers and the mortgagor. 3. One reason that I rejected the application the other day was that the letter from Sydney Wyde Mortgage Management was said to be not a formal offer and was, in any event, subject to satisfactory valuations of what appeared to be the property at Rozelle and a property owned by Mr Fedeli at Clovelly. 4. The same position applies to the present application. The letter is said not to be a formal loan offer and is said to be subject to satisfactory valuations at certain figures of what I again assume to be those two properties. 5. Another reason I rejected the application the other day was that I did not have information as to what exactly was owing to the St George Bank. I referred also to the usual rule that where a party seeks to prevent a mortgagee sale going ahead it is necessary for the mortgagor to tender the amount outstanding to the mortgagee or to pay into Court the amount claimed to be due. 6. The principles in relation to this were discussed by Hamilton J in Parist Holdings Pty Ltd v Perpetual Nominees Limited [2006] NSW ConvR 56-161. He considered whether there has been a relaxation of that rule. He concluded that despite the suggestion in obiter dicta in a Court of Appeal judgment and another judgment by a single judge of the Court, the rule in Inglis v Commonwealth Trading Bank (1972) 126 CLR 161 still obtained. 7. Even if there was any relaxation of the rule because a party could prove they would have the finance, the position seems to me in the present case to be same as it was the other day. There is at best a conditional approval of finance for $1.5 million which may or may not be sufficient to pay out the Bank. The Defendant said that if a little more is required that can be provided. It would be necessary to take his word for that since there is no proof of other moneys. 8. The application is made at the 12th hour. The default judgment was entered on 23 April 2014. The Defendant says he has had difficulty raising finance because of the default judgment. There were, as Justice Hall noted, a number of stays on execution, but none was on the basis that the Defendant had or anyone on his behalf was able to obtain the funds. 9. The position in relation to the matter seems to be left as unclear by this letter of 5 June as it was by the letter I considered in my judgment yesterday. If this money is available to the Defendant and Mr Fedeli they will be able to bid at auction for the property. The Defendant says that the property is worth a lot more than this amount, but I have no evidence at all of what it is worth. The Defendant's apprehension is that the property will sell for a much higher sum and therefore he will not be successful in any bid that he makes. He wishes to remain in the home because it has been his home for some time and, because of the destruction of the other house in which he was living, he and his family have nowhere to live. 10. While I have some considerable sympathy for the Defendant about the matter, there is not sufficient evidence before me to justify at this very late stage the delay of an auction. I do not have sufficient evidence to be satisfied the offer in the letter is unconditional. No other offer is made to redeem the mortgage. Considerable costs and expenses would be thrown away if the auction was enjoined at this late stage. The Defendant says that he would be able to cover those costs, but I do not know what those costs would be nor do I have any evidence of the Defendant's ability to pay moneys apart from this letter from Sydney Wyde Mortgage Management. 11. For those reasons the application is refused. ********** 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