Supreme Court New South Wales

• Medium Neutral Citation: National Australia Bank Limited v Said [2014] NSWSC 959
• Hearing dates: 16 & 17 July 2014
• Decision date: 22 July 2014
• Before: Harrison J

Decision

1. Stay execution of the writ of possession issued by this Court to the plaintiff on 17 March 2014 until further order upon the conditions that:

(a) the defendants within 7 days commence any such proceedings as they may be advised seeking specific performance or associated declarations or other relief with respect to an agreement said to have been made between them and the plaintiff for the discharge of their indebtedness to the plaintiff upon the payment of $1.75M;

(b) Ms Said undertakes to the plaintiff and to the Court to prosecute such proceedings with all due despatch, including the making of an application for an expedited hearing;

(c) pending the determination of the proceedings referred to in (a) above the defendants pay to the plaintiff within 7 days interest from 1 March 2014 to date calculated at Court rates upon so much of the sum of $1.75M as has not already been paid to the plaintiff;

(d) the defendants continue to pay interest monthly upon so much of the sum of $1.75M as has not already been paid to the plaintiff from today until determination of the proceedings referred to in (a) above.

2. Order the defendants to pay the plaintiff's costs of this application.

3. Grant liberty to the parties to apply on 2 days' notice.

• Catchwords: REAL PROPERTY - possession of land - application for a stay of a writ of possession - dispute about formation and terms of settlement deed - whether in interests of justice to stay writ of possession so that dispute can be litigated
• Legislation Cited: Civil Procedure Act 2005
• Category: Interlocutory applications
• Parties: National Australia Bank Limited (Plaintiff); Joseph Michael Said (First Defendant); Rita Juliana Said (Second Defendant)
• Representation: Solicitors: DibbsBarker (Plaintiff); Bechara & Co Lawyers (First and Second Defendants)
• File Number(s): 2011/352962
• Publication restriction: Nil

Judgment

1 HIS HONOUR: Ms Said applies for a stay of a writ of execution that was originally due to be enforced by the sheriff at 11.00am on 17 July 2014. The application was made on the evening of the day before, when arrangements for enforcement had been in place for some time and in circumstances where no adequate reason for the lateness of the application was ever proffered.

2 The proceedings have a relatively long and inauspicious history, and Ms Said's current application is not her first. Significantly for present purposes, the matter came before Hall J on 7 May 2014. The following orders were made by consent:

"The Court notes:

(1) The defendants undertake to issue proceedings in the Equity Division of the Supreme Court of NSW in respect of their claims for specific performance and to take all reasonable steps to expedite the determination of those proceedings, including a notice of motion for expedition.

(2) The parties agree that the costs of the notice of motion filed 30 April 2014 be costs in the Equity Division proceedings.

The Court orders that:

(1) The writ of possession for property at 39 Ettalong Road, Greystanes be stayed until 5pm on 4 June 2014.

(2) Liberty to apply on 1 day's written notice."

3 The Bank had earlier obtained a judgment against Mr and Ms Said on 25 February 2014 for possession of the Greystanes property together with a money judgment for approximately $2.763M. This Court issued a writ of possession on 17 March 2014 and the Bank caused a notice to vacate the property to be sent to Ms Said by the sheriff two days later. That notice informed Ms Said that the sheriff proposed to take possession of the property at 10.00am on 1 May 2014. It is clear that that is what inspired the filing of Ms Said's 30 April 2014 notice of motion, resulting in the disposition of the matter on 7 May 2014 by the consent orders made by Hall J on that day.

4 The burden of Ms Said's contentions at that time was that in early 2014 she had settled the Bank's claims on terms requiring her to pay $1.75M in full satisfaction of her indebtedness to the Bank. At that time she faced a claim by the Bank for an amount considerably in excess of that sum. That indebtedness arose in respect of outstanding loans and unpaid sums advanced to her and secured by mortgages over several properties owned by, or in the effective control of, Ms Said and her husband.

5 When the Bank provided a Settlement Deed to Ms Said for execution, in order to consummate the agreement that the Bank understood was proposed, Ms Said declined to execute it. That is because a dispute arose between Ms Said and the Bank over what had been agreed. Ms Said complained that the Bank had included a series of terms or conditions in the Settlement Deed that she says were never agreed to by her. Ms Said subsequently paid approximately $1.17M to the Bank following the sale of one of the properties. She maintains that her payment of that sum was consistent with her understanding of the settlement agreement. However, Ms Said never paid or tendered the balance.

6 Ms Said has deposed to being ready, willing and able "to honour the agreement", but there remains a dispute about what the agreement actually is and what terms and conditions it was intended to contain. Moreover, Ms Said's ability to raise funds to pay even the balance she says is due in order to fulfil her obligations under the agreement as she understands it, depends upon finance that she can only raise with a first registered mortgage over the Greystanes property. That cannot occur until the Bank's mortgage is discharged. The Bank has proceeded in the meantime upon the basis that no enforceable compromise had come into effect and that it was at liberty to attempt to recover all that it was allegedly entitled to. Ms Said has persisted in her contention that the agreement had been finalised on different terms and that the Bank was precluded from recovering more than $1.75M. She has however conspicuously failed to commence proceedings or seek orders or declarations to clarify the true position, and has coincidentally failed or neglected to comply with her undertaking to do so.

7 When the matter came before me it was supported by affidavits sworn by Ms Said. The first was dated 28 April 2014, and was obviously prepared for use before Hall J on 7 May 2014 and presumably also the Registrar a few days earlier. Ms Said has since sworn affidavits on 16 and 17 July 2014. Although they attempt to do so, those affidavits do not in my opinion contain sufficient evidence to resolve the dispute about the precise terms of the alleged agreement with the Bank, or the important anterior question of whether or not it ever moved beyond the stage of negotiation and the exchange of offers that were never accepted. Because the matter came before me so late, the Bank has also not had a sufficient opportunity to provide me with sworn evidence of its own.

8 During the course of argument I was provided with documents by both Ms Said and the Bank, principally in the form of letters or emails, going to the question of whether an agreement had been reached between the parties or what its terms and conditions might be if it had. It slowly emerged from these extra documents, and what amounted to as yet unsupported statements from the bar table, that Ms Said's case will also to a large extent depend upon conversations between her or her finance broker or solicitor on the one hand, and the Bank or its representatives on the other hand. As no formal agreement signed by the parties was ever finalised, it is likely, if not inevitable, that the correspondence between them and their contemporaneous conversations will offer up more that one possible answer to the question.

9 The regime for which the orders of Hall J provided was based upon an anticipation, approaching expectation, that the parties would promptly and finally be furnished with an answer to Ms Said's contentions. The Bank's earlier consent to those orders was commendable and undoubtedly consonant with the overriding purpose endorsed by the Civil Procedure Act 2005. Unfortunately, the answer was not forthcoming because Ms Said ignored that regime, when she ought to have moved with celerity to comply with it. Her inaction has therefore produced the unfortunate consequence that the prayers for discretionary relief that she has revived before me necessarily continue to depend to a great extent on mere assertion and substantial ambiguity. The Bank not unreasonably maintains in such circumstances that any principled basis for the exercise of a discretion to continue the stay or revive the earlier regime has gone and correspondingly that Ms Said's entitlement to further favourable consideration has been forfeited.

10 The outcome of the dispute carries significant consequences for the parties. The difference between the amount that Ms Said owes the Bank if the agreement that she propounds is established, and the amount of her indebtedness to the Bank if she fails to do so, exceeds $1M. The Court should not lightly discard the opportunity to find where the truth lies, even if Ms Said has herself been less than enthusiastic to embrace the opportunity when it was given.

11 I am disinclined to foreclose the chance that Ms Said can establish that the Bank committed itself to an enforceable agreement of the kind that she propounds. I am reluctantly satisfied that justice in the circumstances of this case requires that the Bank's writ of possession should be stayed on strict terms so that the issue can be litigated finally. I propose therefore to make the following orders:

(1) Stay execution of the writ of possession issued by this Court to the plaintiff on 17 March 2014 until further order upon the conditions that:

(a) the defendants within 7 days commence any such proceedings as they may be advised seeking specific performance or associated declarations or other relief with respect to an agreement said to have been made between them and the plaintiff for the discharge of their indebtedness to the plaintiff upon the payment of $1.75M;

(b) Ms Said undertakes to the plaintiff and to the Court to prosecute such proceedings with all due despatch, including the making of an application for an expedited hearing;

(c) pending the determination of the proceedings referred to in (a) above the defendants pay to the plaintiff within 7 days interest from 1 March 2014 to date calculated at Court rates upon so much of the sum of $1.75M as has not already been paid to the plaintiff;

(d) the defendants continue to pay interest monthly upon so much of the sum of $1.75M as has not already been paid to the plaintiff from today until determination of the proceedings referred to in (a) above.

(2) Order the defendants to pay the plaintiff's costs of this application.

(3) Grant liberty to the parties to apply on 2 days' notice.

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Decision last updated: 22 July 2014