Commonwealth Bank of Australia v Damevski [2015] NSWSC 1652

Supreme Court New South Wales

Medium Neutral Citation: Commonwealth Bank of Australia v Damevski [2015] NSWSC 1652 Hearing dates: 5 November 2015 Date of orders: 05 November 2015 Decision date: 05 November 2015 Jurisdiction: Common Law Before: Schmidt J Decision: That the eviction scheduled to be effected at 11:30am today be stayed until 19 November 2015 on condition that: i. the defendants provide the plaintiff with a bank cheque in the sum of $110,000 and ii. a signed copy of the letter sent to the defendants on 28 October 2015 be provided to the plaintiff's solicitors on or before 3pm today, with the original of the signed letter to be provided by 4pm on 9 November 2015. Catchwords: PROCEDURE – stay application – agreement reached – consent orders made Category: Procedural and other rulings Parties: Commonwealth Bank of Australia ABN 48 123 123 124 (Plaintiff) Borce Damevski (First Defendant) Valentina Damevski (Second Defendant) Representation: Solicitors: Mr R Lewin Gadens Lawyers (Plaintiff) Mr Damevski, unrepresented (First Defendant) File Number(s): 2013/327877 - Publication restriction: None

EX TEMPORE Judgment 1. HER HONOUR: This is an application for a further stay of an eviction which is scheduled to take effect at 11.30am today. The motion has come before the Court this morning supported by an affidavit sworn by Mr Damevski on 4 November. He today advanced his application on the basis of that material, as well as what appears in a document which I have marked MFI 1, which explains some of the background to the difficulties which he has faced in repaying what is outstanding to the Bank. 2. Also filed in court this morning is an affidavit sworn by Mr Lewin, the Bank's solicitor, on 5 November. That affidavit explains part of the procedural history of the matter, which includes that judgment in favour of the Bank was given on 2 December 2014, for possession of two properties; one located at Abbotsbury, and the other at Kogarah. 3. Writs of possession were later issued in relation to the Kogarah property, in January 2015, and an eviction was scheduled in March. 4. Before the eviction Mr Damevski obtained an ex parte order staying the eviction. On 30 March a further stay was refused by the Court and the eviction was rescheduled for May. The May eviction was stayed in accordance with an agreement reached by the parties. Subsequently a further eviction was scheduled for 3 September. There was a further stay following the settlement of the sale of the Abbotsbury property. Despite that sale, there was a further eviction scheduled for today. 5. That record in Mr Lewin's affidavit does not refer to other procedural steps taken in the proceedings, which include a stay refused by Bellew J in April 2015. The position further disclosed by Mr Lewin's affidavit and what has fallen from the parties this morning, is that there have been ongoing negotiations between the parties as to a basis on which an agreement might be reached, whereby this morning's eviction would be further stayed. 6. Those negotiations failed, in circumstances where the Bank required Mr and Mrs Damevski, the mortgagors, to execute an agreement and pay the Bank $110,000. 7. This morning I adjourned the hearing so that a further proposal put by Mr Damevski could be considered by the Bank. An agreement was not reached, in circumstances where Mr Damevski was not in a position to provide either an executed agreement, or $110,000 to the Bank. 8. Present with him when the hearing resumed was a friend, Mr Carter, who was said in the materials that Mr Damevski relied on, to be prepared to assist him, but it became apparent that that assistance was on the basis that there would have to be further negotiations with the Bank, as to it accepting some amount yet to be identified, in order for the stay to be agreed. 9. In all of those circumstances I am unable to accept that justice demands that a further stay be granted. 10. CARTER: Can I interrupt, your Honour, and speak at some stage before your final judgment? 11. HER HONOUR: No. Just one moment. Let me finish, please. Take a seat. 12. In those circumstances, I was saying, I am not satisfied that justice demands that a further stay be granted. There is no evidence before the Court that Mr Damevski is in a position to pay the sum identified in Mr Lewin's affidavit of $221,411.14 which is outstanding, let alone the $110,000 which was the subject of discussions between the parties. 13. In those circumstances a stay cannot be granted. 14. It was at this point that without objection, I allowed Mr Carter to make a statement. I then took a further adjournment during which discussions between the parties resumed. On resumption an agreement was announced by the Bank, with the result that I made the following consent orders: That the eviction scheduled to be effected at 11:30am today be stayed until 19 November 2015 on condition that: i. the defendants provide the plaintiff with a bank cheque in the sum of $110,000 and ii. a signed copy of the letter sent to the defendants on 28 October 2015 be provided to the plaintiff's solicitors on or before 3pm today, with the original of the signed letter to be provided by 4pm on 9 November 2015.