Supreme Court New South Wales Medium Neutral Citation: St George Bank – A Division of Westpac Banking Corporation v Ian Craig Press [2017] NSWSC 1129 Hearing dates: 21 August 2017 Decision date: 21 August 2017 Jurisdiction: Common Law Before: Button J Decision: (1) The notice of motion of the defendant, Ian Craig Press, filed on 23 June 2017, is dismissed. (2) The defendant, Ian Craig Press, must pay the costs of the plaintiff, St George Bank, of the proceedings. Catchwords: PRACTICE AND PROCEDURE – application for stay of execution of writ of possession – appeal pending – reliance on "promissory notes" in satisfaction of judgment debt – application refused Cases Cited: St George Bank – A Division of Westpac Banking Corporation v Ian Craig Press (Supreme Court (NSW), Fagan J, 9 June 2017, unrep) Category: Procedural and other rulings Parties: St. George Bank – A Division of Westpac Banking Corporation (Plaintiff) Ian Craig Press (Defendant) Representation: Counsel: Mr Conor Bannan (Plaintiff) Mr Ian Craig Press, self-represented (Defendant) Solicitors: Ms K Wells, Kemp Strang Solicitors (Plaintiff) File Number(s): 2015/317127 Publication restriction: Nil EX TEMPORE Judgment Background 1. This application for the stay of the execution of a writ of possession issued by the plaintiff, St George Bank (St George), has something of a long history. But because of the (with respect) comprehensive judgment of his Honour Fagan J of 9 June 2017, I can state things shortly: St George Bank – A Division of Westpac Banking Corporation v Ian Craig Press (Supreme Court (NSW), Fagan J, 9 June 2017, unrep). The other reason for being concise and determinative now is, of course, the repeated delays in the resolution of this matter, which will become apparent later in this judgment. 2. In the proceedings before his Honour, the defendant, Mr Press, sought to resist the force of a deed entered into by himself and St George, after a mediation, which occurred after the commencement of proceedings against him by St George founded upon a loan and mortgage. Two bases of resistance were argued: the provision to St George by Mr Press of what he called promissory notes, said to be equivalent to cash and therefore discharging the debt in its entirety, and the proposition that he had entered into the deed under duress. 3. His Honour rejected the first ground of resistance on the basis that it was ill-founded in law. His Honour rejected the second ground of resistance on the basis that circumstantial evidence, not least of which was the behaviour of Mr Press himself, showed that he had not been the subject of duress when he entered into the deed. To give but one example, the proffering of the so-called promissory notes showed that Mr Press accepted that he was liable pursuant to that document. 4. Before the judgment of his Honour, and when repayment of the debt of something over half $1 million was not forthcoming from Mr Press in accordance with the deed, St George had sought to enforce the deed by way of filing consent orders in this Court. Mr Press resisted that, and without detailing the forensic steps thereafter that have taken place between 9 June 2017, the date of his Honour's judgment, and today, 21 August 2017, it is clear that Mr Press has been accommodated by this Court to some degree. 5. He has now sought to have the writ put off yet further, on the principal basis, as I understand it, that he has filed a notice of appeal, albeit only a few days ago. His position is that no writ should be enforced before the first return date of the appeal, which I understand to be 18 October 2017. 6. It is noteworthy that, in truth, the writ will not be executed today, tomorrow, or in the very near future; from the Bar table, counsel for St George predicted that, logistically, the writ will not be actually enforced before the effluxion of approximately four weeks from today. Determination 1. To my mind, a further delay in this matter cannot be sustained. The debt (in terms of default) first arose almost two years ago, in October 2015. The statement of claim of St George was filed on 28 October 2015. The mediation occurred in September 2016, almost a year ago. The judgment of Fagan J, which explicitly permitted the issue of a writ for possession, was promulgated over two months ago. The notice of appeal was filed extremely recently. The matter has come before me today, the very day upon which previous orders of this Court expire. All of that argues strongly against a further delay, to my mind. 2. As well as that, the argument of Mr Press with regard to the provision of so called promissory notes is, in my opinion, completely ill-founded, both in law and in common sense – the transcript of discussions between Mr Press and me demonstrates the fact that his arguments are, in truth, divorced from reality. 3. As for duress, the judgment of his Honour is compelling indeed, with respect, with regard to all of the factors that tell powerfully against that proposition. 4. The other proposed grounds of appeal all suffer from a number of defects. Many of them were not based on submissions placed before the judge at first instance, and at least one of them relates to an interlocutory decision not to grant an adjournment on two occasions, and therefore requires leave. 5. Separately, departing from my analysis of the proposed appeal and analysing the circumstances more generally, there is nothing to suggest that the proffered sums spoken of by Mr Press today are available to him. Indeed, although a plethora of material was placed before me by Mr Press in support of his argument about promissory notes, no document was placed before me to suggest that the sale of the property by Mr Press in order to fulfil his debt is imminent, or even likely. 6. Furthermore, I regret to say that the unsustainability of the oft-repeated submission about promissory notes calls into question the bona fides of Mr Press, and leads one to suspect that much of what has occurred over the past two years is nothing more than a delaying tactic on his part. 7. I accept, of course, that it will be painful indeed for Mr Press and any of his dependants to be called upon to leave the home on threat of eviction in a month or so. I also accept that he is impecunious, and unrepresented as a result, and I do not hold the procedural or legal defects in his documentation against him. 8. But in all the circumstances that I have outlined, whilst I accept that I have a broad power to stay the execution of a writ, or indeed any other form of enforcement of a judgment of this Court, on the material placed before me I decline to do so. Costs 1. As for costs, counsel for St George submitted that I should make such an order for abundant caution, in particular if there were to be a dispute about the enforceability of a provision to that effect in the loan and mortgage documents. Reflecting on the history of the matter, and its presentation today, I am content to make that order. Orders 1. I make the following orders: 1. The notice of motion of the defendant, Ian Craig Press, filed on 23 June 2017, is dismissed. 2. The defendant, Ian Craig Press, must pay the costs of the plaintiff, St George Bank, of the proceedings before me. ********** Amendments 25 September 2017 - Paragraph numbers taken off headings. Paragraph numbers taken off Orders 1 and 2 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: 25 September 2017