Supreme Court New South Wales Medium Neutral Citation: El Khouri v El Khouri [2017] NSWSC 1650 Hearing dates: 11 October 2017 Decision date: 11 October 2017 Jurisdiction: Common Law Before: McCallum J Decision: Execution of the writ of possession issued 25 August 2017 stayed up to and including 5pm on 8 November 2017 Catchwords: POSSESSION – application to stay execution of writ – hardship – one of six siblings suffering chronic grief following the death of their mother – whether short stay warranted on hardship grounds Category: Procedural and other rulings Parties: Julie El Khouri (applicant) Peter John El Khouri (respondent) Representation: Counsel: Dr G O'Shea (applicant) L Hespe (respondent) Solicitors: AWM Dickinson & Son (applicant) Teece Hodgson & Ward (respondent) File Number(s): 17/23725 Publication restriction: None Judgment 1. HER HONOUR: Julie El Khouri is one of six siblings who inherited the house formerly occupied by their mother, who died in 2015. She understands that her brother, the executor of the estate, has a duty to administer the estate, which will include selling the house. Prior to her mother's death, Ms El Khouri was the sole carer for her mother and she has remained in occupation of the house since her mother's death. 2. Although Ms El Khouri understands that she has to vacate the house and has consented to orders to do so, she finds herself presently in a mental state where she is unable to take that step. The brother in those circumstances obtained an order for possession. A writ of possession issued on 25 August 2017. The writ is scheduled to be executed tomorrow morning at 9:30am. 3. At a very late hour, Ms El Khouri approached barristers' chambers seeking assistance in making an application to stay the execution of the writ. I wish to record in that context that Dr O'Shea of counsel agreed in those urgent circumstances to appear for her in the application this afternoon on a pro bono basis. The Court expresses its gratitude and respect to Dr O'Shea for upholding that fine tradition of the Bar. 4. The application for a stay is opposed by Mr Hespe, the solicitor for the executors. Mr Hespe quite reasonably and correctly observes that the executors have granted considerable indulgence to Ms El Khouri in the administration of the estate. The deceased died, as I have already indicated, in 2015 on 7 May. Demand was first made that Ms El Khouri vacate the premises in about June of last year. Several formal demands were made in the latter half of that year. 5. On 24 July 2017, consent judgment was entered granting judgment for the plaintiffs for possession of the land in their capacity as executors of the estate and leave to issue a writ, which it was agreed would not be executed prior to 28 July 2017. By that concession the executors did not pursue an application made in the statement of claim for mesne profits or costs. Ms El Khouri subsequently agreed to vacate the premises voluntarily by a date in August but, as already noted, could not bring herself to do so. 6. The application today is supported by a letter from a general practitioner. The author of the letter is not Ms El Khouri's usual doctor but writes that her usual doctor is unavailable. He confirms from the practice records that Ms El Khouri has been suffering considerable grief since the loss of her mother and that her grief remains unresolved. 7. Ultimately I do not think any person or judicial officer would be serving Ms El Khouri's best interests to allow the present situation to continue indefinitely and I have explained that to Ms El Khouri in no uncertain terms. I am concerned, however, as to the likely traumatic effect of enforcement of the writ tomorrow morning. 8. I think it is appropriate, in accordance with well-established authority acknowledging the role of mercy in a hardship application, to grant one short indulgence to Ms El Khouri to allow her an opportunity to put in place a formal mental health treatment plan to prepare herself for the inevitable task of vacating the premises. 9. For those reasons I order that execution of the writ of possession issued on 25 August 2017 be stayed up to and including 5pm on 8 November 2017. ********** 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: 07 December 2017