Supreme Court New South Wales

• Medium Neutral Citation: National Australia Bank v Caporale Builders Corp [2012] NSWSC 1401
• Hearing dates: 13 November 2012
• Decision date: 13 November 2012
• Jurisdiction: Common Law
• Before: Latham J

Decision

Notice of Motion dismissed

• Catchwords: NOTICE OF MOTION - stay writ of possession - dismissed
• Cases Cited: NAB v Caporale [2012] NSWSC 1014; Fox v Percy [2003] HCA 22
• Category: Procedural and other rulings
• Parties: National Australia Bank Ltd - (Plaintiff); Caporale Builders Corporation Sydney Pty Limited - (Defendant)
• Representation: Counsel; C Price - (Plaintiff); R Caporale - (In person); Solicitors; Gadens - (Plaintiff)
• File Number(s): 2010/150119

Judgment

1 By notice of motion filed 13 November 2012 the defendant, Caporale Builders Corporation Sydney Pty Limited, sought a stay of a writ of possession in relation to Lot 750 Princes Highway, Darks Forest for a period of seven days in order to allow the defendant to obtain legal advice as to the prospects of success of an appeal against a decision of Justice Beech Jones of 31 August 2012. That proposed order is prayer 2 in the notice of motion. However there were a number of other orders sought in the notice of motion which were not pressed on the hearing of the matter. As will become clear from this judgment, there are a number of properties in respect of which Justice Beech Jones gave possession to the plaintiff, but the defendant was content to confine this matter to the Darks Forest property.

2 At the conclusion of the hearing, I made an order dismissing the notice of motion. These are the reasons for that order.

3 The notice of motion was supported by an affidavit of Tommaso Caporale of 12 November 2012 and an affidavit of Rosa Caporale dated 12 November 2012. I note in passing that Rosa Caporale is not a legally qualified person. She is the sister of Tommaso Caporale, a director of the defendant company, who has authorised Ms Caporale to speak on behalf of the company for the purposes of these proceedings. It appears from the judgment of 31 August 2012 of Justice Beech Jones that the proceedings were effectively conducted by Ms Caporale before him on the same basis.

4 Justice Beech Jones gave judgment for possession and various sums of money in favour of the plaintiff arising out of the extension of a number of loan facilities totalling approximately $7.726 million by the plaintiff to the defendant, three natural persons (all members of the Caporale family) and another family company between 2004 and 2006. The loans were secured over 17 properties owned by the various defendants. The defendant ceased making interest payments under the loans in February 2007. In 2010 the plaintiff commenced five of the six proceedings in this Court. In 2012 it commenced the sixth proceedings against Giuseppe Caporale.

5 At paragraph 5 of the judgment (NAB v Caporale [2012] NSWSC 1014), Justice Beech Jones notes that :-

the five proceedings commenced in 2010 had a difficult procedural history. That history is outlined in Zippoz Pty Ltd v National Australia Bank [2011] NSWCA 164. In summary, the defendants attempted to plead various defences which were rejected as being bad in form. Eventually, on 22 March 2011, Harrison AsJ struck out the defences and entered judgement in favour of NAB. An application to set aside those judgements was refused by Davies J on 21 April 2011. The defendant sought leave to appeal to the Court of Appeal which was refused on 22 June 2011. Notwithstanding that refusal, they made a further application to set aside the judgments. On 7 July 2011 Simpson J granted that application. Her Honour set aside the judgment that had been entered against them, and granted them leave to file a defence in a specified form. The defence pleaded that the NAB was estopped from seeking recovery and possession by virtue of various statements that NAB officers were said to have made to Rosa Caporale throughout 2007 to 2008.

6 Justice Beech Jones went on to find that the various statements attributed to NAB officers were not made, in that :-

the NAB did not represent to Rosa Caporale that it would not take action to recover what was owing to it, or enforce its securities pending the pursuit by her and the Caporale interests of [a particular building] project. The context of all the discussions between her and representatives of the NAB was that the latter were raising their concerns about the outstanding payments, and that she was seeking to allay those concerns by pointing to the positive prospects of the .. project. ...... At no point did the NAB ever state that it would preclude itself from enforcing its rights until some unspecified point in the future development of the [project].

7 Justice Beech Jones then dealt with the estoppel claim which was, not surprisingly, defeated by virtue of the findings of fact made by his Honour referred to immediately above. It was also doomed to fail because of the absence of any evidence that the defendant relied upon the alleged representations or that the defendant suffered any detriment from the plaintiff's alleged resiling from such alleged representations.

8 Justice Beech Jones gave possession of all the subject properties to the plaintiff and entered judgment for the plaintiff in the sum of approximately $15 million.

9 The height of the defendant's submission is that a solicitor has been engaged to consider the prospects of an appeal. There is no prospect of a successful appeal against Justice Beech Jones' decision unless the findings of fact underpinning the judgment are capable of being set aside by the Court of Appeal. On my understanding of the proceedings before Beech Jones J, this was not a case where those essential findings of fact could be seen to be "glaringly improbable" or "contrary to compelling inferences" in the case : see Fox v Percy [2003] HCA 22 at [29].

10 The failure of the defendant to lodge a notice of appeal is particularly significant in the light of the hearing of a notice of motion filed 24 September 2012 before Adamson J on 9 October 2012. Justice Adamson's decision dismissing the notice of motion the same day reveals that the defendant made the same application that is being made before me, on the basis that the defendants required time to prepare an application to lodge a new defence and a cross claim for damages against the plaintiff. Justice Adamson's judgment notes that it was brought to Ms Caporale's attention that any challenge to the judgment would need to be made in the Court of Appeal. The judgment goes on to note that Ms Caporale then made submissions on the reasons why a stay should be granted pending a challenge to the decision by leave to the Court of Appeal.

11 It is apparent therefore that Ms Caporale has been under no misapprehension since 9 October 2012 about the proper avenues by which an appeal against Justice Beech Jones's decision of 31 August ought be pursued. Notwithstanding that knowledge, Ms Caporale and the defendant took no steps towards mounting an appeal, beyond instructing a firm of solicitors on or about 9 November to consider the matter.

12 Such tardy and leisurely steps purportedly taken to protect the defendant's asserted interests in the subject property are wholly inconsistent with the duty of the parties to assist the Court in facilitating the quick, cheap and just resolution of the dispute between them. More importantly, the plaintiff has been repeatedly deprived of the fruits of the litigation since August in circumstances where the defendant's indebtedness is approximately triple the amount capable of being realised from the sale of the various properties. No error in Beech Jones J's judgment has been identified by the defendant.

13 A further ground for the stay was said to be the inability of the tenant at the Darks Forest address to find alternative accommodation in the time that was provided to him. In response to that submission the plaintiff tendered an affidavit of service of Andrew Jones sworn 24 June 2010, proving service of a Notice to Occupier, informing the tenant of the existence of the proceedings being taken by the plaintiff for possession of the land. On 4 May 2011, the tenant was served with a notice to vacate. A further notice to vacate was served on 9 October 2012. It allowed the tenant until 14 November to leave the premises. There is no adequate explanation for the failure of the tenant to find alternative accommodation over that period of time.

14 In all of the above circumstances, there is absolutely no merit in the defendant's argument for a stay.

Decision last updated: 21 November 2012