Judith Anne Radin v Commonwealth Bank of Australia [1998] FCA 58 (3 February 1998)

FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE - Court's power to grant extension of stay of execution of writ of possession - applicant seeks extension of stay until final determination of substantive proceeding - mortgagee bank obtained judgment for possession of dwelling house and money judgment - applicant granted stay of execution of writ of possession - numerous extensions of the stay previously granted - bank previously opposed grant of extensions on discretionary grounds - whether power to grant further extension sought - no pending ancillary application - - power to grant further extension on ground of practical necessity or where judgment sought to be enforced for improper purpose - whether, if power to grant further extension available, further extension of stay should be granted as an exercise of discretion - concessions made by applicant's solicitor on original hearing of bank's claim for possession that bank entitled to that judgment and only remaining question was period of stay.

JUDITH ANNE RADIN v COMMONWEALTH BANK OF AUSTRALIA

NG 985 of 1995

LINDGREN J

SYDNEY

3 FEBRUARY 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 985 of 1995

BETWEEN:	JUDITH ANNE RADIN Applicant
AND:	COMMONWEALTH BANK of australia (ACN 123 123 124) Respondent

JUDGE:	LINDGREN J
DATE:	3 FEBRUARY 1998
PLACE:	SYDNEY

THE COURT ORDERS THAT:

1. The time for which the writ of possession, issued pursuant to orders made on 30 April 1997, is to lie in the Court office and not be executed, be further extended to 17 February 1998.

2. The applicant pay the respondent's costs of the motion.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 985 of 1995

BETWEEN:	JUDITH ANNE RADIN Applicant
AND:	COMMONWEALTH BANK of australia (ACN 123 123 124) Respondent

JUDGE:	LINDGREN J
DATE:	3 FEBRUARY 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(ex tempore)

(application for further extension of stay of execution of writ of possession)

There is before the Court a motion by Mrs Radin brought by notice of motion filed today seeking a further stay of execution of a writ of possession which the Bank has caused to be issued pursuant to orders which I made on 30 April 1997 in this proceeding. Mrs Radin seeks an extension until the final determination of the substantive proceeding. I gave Reasons dated 8 May 1997 for the making of those orders. As well I have delivered Reasons for Judgment on 1 August 1997, 3 September 1997, 20 November 1997 and earlier today (3 February 1998), all of which impinge on the present motion.

I do not propose to recapitulate the matters dealt with in those various judgments but they provide relevant background to, and to some extent the reasons for, the decision on the present motion at which I arrive below. I incorporate them into these present Reasons.

On 30 April 1997, the Bank obtained against Mrs Radin judgment for possession of a dwelling house at 11 Appian Way, Burwood ("the Property") and a money judgment for $711,011.06. The Bank was granted liberty to issue a writ of possession.

I ordered that any writ of possession issued should lie in the Court office and not be executed prior to 30 June 1997. On 1 August 1997 there was an extension of the stay to 31 October; on 20 November, to 16 January; on 19 December, to 2 February 1998; yesterday, to today; and earlier today, to 4 pm tomorrow.

The reasons for which the various extensions were granted will be found in the earlier judgments. Mrs Radin and her two children, aged, I think, 15 years and 9 years, live in the Property. The Property is registered in the names of Mrs Radin and her husband, Michael (or Milosh) Radin. They have long since separated and he has not lived in the Property for quite some time.

The Bank has never disputed that the Court could grant the stays sought from time to time by Mrs Radin and has opposed the grant of them only on discretionary grounds. After delivering judgment earlier today on another motion brought by Mrs Radin, I raised with counsel the question of my power to grant the further stay now sought. In relation to recent stays there can be no doubt that I had power to grant them because they were ancillary to an application by Mrs Radin for a setting aside of the judgment for possession, or, alternatively, for an extension of time in which to file a notice of appeal against that judgment. But this morning I dismissed that application. Accordingly, there is no pending appeal, application for leave to appeal, or application for an extension of time in which to lodge a notice of appeal, to which the present motion might be said to be ancillary.

Counsel have not referred me to any authorities on the issue and the matter has not been explored fully in argument. Mr Marshall of counsel for the Bank has suggested that the Court has power to grant the stay sought by Mrs Radin in "special circumstances" and submits that such circumstances do not exist here.

I incline to the view, but do not decide, that I do not have power to grant the stay sought. Perhaps by reference to practical necessity, that is the necessity of a short period of time in which to remove belongings, a court has power to allow some relatively short period of time. Again, there might conceivably be power if it could be shown that a judgment was sought to be enforced for an improper purpose, as where a mortgagee was refusing to accept imminent payment in full of the amount secured by its mortgage and was therefore apparently insisting on possession for a collateral and impermissible purpose.

But even if I have the necessary power, I have formed a firm view that as an exercise of discretion I should not grant the stay. Unfortunately, and I say "unfortunately" because it is no pleasure to make an order the effect of which will be that Mrs Radin and the two children will have to move house, I have come to the firm view that circumstances are not shown which would justify me in preventing the Bank any further from enforcing its legal right to possession recognised in the judgment of 30 April 1997.

The evidence on the motion has dealt with such matters as attempts by Mrs Radin to find employment in order to increase her income, to find alternative accommodation, to find alternative places of schooling for her children, and the availability of accommodation suitable to the needs of herself and the two children. Some or all of these matters have also been addressed in the earlier judgments.

The Property is apparently worth something of the order of $800,000 or $1,000,000 (both figures have been mentioned), according to Mrs Radin's evidence, the registered proprietors are entitled to access to two tennis courts, and Appian Way, Burwood is a prestigious address. Clearly, the Property is a substantial one. Relocation will involve a reduction in standard of living for Mrs Radin and the children.

Mr Duncan of counsel who appears for Mrs Radin has, I should add, said everything that could be said on her behalf as to why a further extension should be granted. He says that it cannot be known that ultimately she will lose possession because it may be that as a result of the pending proceedings (the present proceeding is associated with two others referred to in my Reasons for Judgment of earlier today) in which submissions will be heard in the near future, in some way or another the Bank's mortgage will be paid out. However, no attempt has been made to show how this could possibly come about. I noted in my Reasons for Judgment dated 8 May 1997, that it was conceded by the solicitor then appearing for Mrs Radin that the Property would have to be sold at some time and that the only question was when. It was accepted then that on any reckoning, even after all the properties mortgaged to the Bank are taken into account, there would ultimately be a substantial shortfall. I cannot accept the generalised submission that somehow as a result of the final hearing a way may be found for the Property to be saved. No convincing submissions have been put as to why the concessions previously made by Mr Licardy, the solicitor who appeared for Mrs Radin on the original hearing of the Bank's second cross-claim for possession, were not properly made.

Accordingly, if I do have power to grant a further extension on the grounds put, I am not persuaded in the exercise of my discretion to do so. I think it is proper, however, in terms of practical necessity, that there be a short stay, to permit Mrs Radin and the children to remove their belongings. The Bank does not oppose a fourteen day stay.

The orders of the Court on Mrs Radin's motion are that the time for which I ordered that the writ of possession issued pursuant to orders made on 30 April 1997 lie in the Court office and not be executed, be further extended to 17 February 1998. I order the applicant to pay the respondent's costs of the motion.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren

Associate:

Dated: 12 February 1998

Counsel for the Applicant:	Mr M B Duncan
Solicitor for the Applicant:	Richard A Licardy & Co
Counsel for the Respondent:	Mr J E Marshall
Solicitor for the Respondent:	Abbott Tout
Date of Hearing:	3 February 1998
Date of Judgment:	3 February 1998