Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Prime Capital Securities Pty Limited v Sara [2016] NSWCA 171 Hearing dates: 11 July 2016; 13 July 2016 Date of orders: 13 July 2016 Decision date: 13 July 2016 Before: Payne JA Decision: The Notice of Motion filed in this Court on 11 July 2016 is dismissed with costs Catchwords: PRACTICE AND PROCEDURE ‑ notice of motion seeking an urgent stay of a Writ of Possession – where writ already executed – motion dismissed Legislation Cited: Real Property Act 1900 (NSW) s 572(b) Cases Cited: Goater v Commonwealth Bank of Australia [2014] NSWCA 382; 88 NSWLR 362 Prime Capital Securities Pty Ltd v Sydney Commercial and Governmental Floor and Wall Tiling Services Pty Ltd (No. 2) [2016] NSWSC 543 Category: Procedural and other rulings Parties: Joseph Sara (first applicant) Assaf Sara (second applicant) Gadens Lawyers (first respondent) Prime Capital Securities Pty Ltd (second respondent) Representation: Solicitors: Mr Sperber (applicants) Mr M Wirth (second respondent) File Number(s): 2016/209302 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] ex tempore Judgment (revised from transcript) 1. HIS HONOUR: Prime Capital Securities Pty Ltd, which I will refer to in this judgment as Prime Capital, which is the second respondent of this Notice of Motion, commenced proceedings in the Supreme Court by the filing of a Statement of Claim in about October 2015. In that Statement of Claim, they sought a monetary judgment and an order for possession of land at Hurlstone Park owned by Mr Joseph Sara and Mr Assaf Sara, the applicants on the present Notice of Motion. 2. The monetary judgment amount was based on a debt pleaded to be owing by the applicants to Prime Capital arising from the guarantee each had signed of the principal indebtedness. The Court was informed that the principal debtor, Sydney Commercial and Government Floor and Wall Tiling Services Pty Ltd, has been deregistered by the Australian Securities and Investment Commission. 3. The original loan amount was advanced in September 2014. Default in repayment is pleaded to have occurred in April 2015. According to Prime Capital, a notice under s 57(2)(b) of the Real Property Act 1900 (NSW) was served on the present applicants in August 2015. 4. On 17 February 2016, Davies J in the Common Law Division struck out a defence and cross-claim filed by Mr Joseph Sara on about 16 December 2015. 5. A further defence and cross-claim was sought to be filed on 29 April 2016. Davies J refused leave to file those documents: [2016] NSWSC 543. In that judgment his Honour described the material which was contained in the defence as being "largely incomprehensible". Davies J concluded that, having been given two opportunities to plead a proper defence to a cross-claim over a period of four months, and having failed to do so, the applicants should not be permitted to file the documents that they sought to rely upon. 6. On 6 May 2016, Prime Capital filed a Notice of Motion seeking default judgment on the Statement of Claim. On 9 May 2016, judgment was entered for possession and for a monetary sum in excess of $400,000. On 20 May 2016, a writ of possession was issued by the Court containing the following orders: All occupants are hereby given notice that they must vacate the premises prior to 11.30am on Monday 11 July 2016 otherwise action will proceed to evict you without further warning. There are no further extensions to this time frame unless initiated by the Plaintiff. 1. On 6 July 2016, a Notice of Motion was filed by the applicants seeking a stay of the writ of possession. On 11 July 2016, this motion was dismissed by a Registrar of the Court. Later that day, the applicants renewed their application before the Common Law Division duty judge, Beech-Jones J. His Honour dismissed the application for a stay. 2. The writ of possession was executed at 11.30am on 11 July 2016. I was informed by Mr Assaf Sara that he was present at the premises when officers of the New South Wales sheriff's office entered into possession and changed the locks. Later on 11 July 2016, that is after the execution of the writ of possession, the applicants filed a Notice of Motion in this Court seeking an urgent stay of the writ of possession. 3. The matter came before me in this Court at 2.15pm on 11 July 2016 in the referrals list. Mr Joseph Sara and Mr Assaf Sara appeared for themselves. Each was given the opportunity to make oral submissions. No additional written material was relied upon, although I note on the file there is a document described as a summons commencing an appeal, although it is unclear whether that document has actually been filed with the Court. Mr Wirth appeared on that occasion for Prime Capital and the Court is grateful for the assistance that his submissions provided. 4. On 11 July 2016, a joint application was made by the parties for the Notice of Motion to be adjourned for a short period to facilitate discussions between the parties and for the applicants to obtain legal advice. Accordingly, I adjourned the hearing of the Notice of Motion until 9am today, 13 July 2016. 5. At the hearing this morning, the applicants were represented by Mr Sperber, and the Court is grateful for his appearance. Mr Wirth continued to appear for the respondent. An application was made for an adjournment by Mr Sperber. However, in the circumstances, I refuse that application. 6. It seems to me that, so far as the present Notice of Motion is concerned, I have no alternative on the evidence before me but to dismiss it. Dismissal of the Notice of Motion seeking a stay of the applicant's eviction is inevitable. There is in the circumstances nothing left to say. As Mr Sara senior eloquently explained on the last occasion, the New South Wales sheriff's officers had already evicted the applicants from the home and changed the locks before the present application was made to the Court of Appeal. 7. Nothing in what I have said, however, means that as between Prime Capital and the applicants, the Court would not be able to grant necessary relief in the event that the underlying default judgment were to be set aside. Plainly, the Court would have such a power, including the power to ensure that the applicants would be able to recover possession of the home at Hurlstone Park, if successful in that application: see Goater v Commonwealth Bank of Australia [2014] NSWCA 382; 88 NSWLR 362. 8. It is true that as matters stand, despite a number of opportunities to do so, and notwithstanding the personal hardships that they face, the applicants have not been able to prepare an arguable defence to the claim that is made against them, such that there would be a basis to set aside the default judgment which had been entered. 9. It may be, however, that the Court will be able to embark upon a consideration of evidence if there is identified an arguable defence to the claim that is made against them and an application is made in the proper form to the Court. A fundamental basis in any application to set aside the underlying default judgment is the identification of an arguable defence, as is evidence in admissible form of the reasons why the application is only being made at this stage of the process. 10. Given the stage the matter has reached with Prime Capital in possession of the property at Hurlstone Park, those advising the applicants would obviously be mindful that any application that they make should be undertaken with expedition. 11. Accordingly, the orders of the Court are that the Notice of Motion filed in this Court on 11 July 2016 is dismissed with costs. ********** 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: 15 July 2016