This matter comes before me, as the duty judge, at 8.30am on 16 April 2020 pursuant to a motion served by the defendant overnight seeking a stay of the writ of possession which was due to be enforced at 9.00am today.
The defendant appears in person by AVL. Mr Smith of counsel appears for the plaintiff over the phone.
When I was contacted by the defendant yesterday evening, I directed that she inform the plaintiff of her further application. I received an email from Mr Smith (copied to the plaintiff) late in the evening providing me with some helpful background to the matter.
I directed that the defendant serve any affidavits on which she relies by 8.00am this morning. She did not do so. When the matter commenced at 8.30am, there was no appearance by the defendant, although Mr Smith appeared.
The defendant ultimately appeared by AVL closer to 9.00am than 8.30am. She says that she had been trying to connect and had been trying to provide affidavits to the Court and the plaintiff but that there was a difficulty with her scanner.
The Court received her affidavits (unsworn but with an undertaking to provide sworn or affirmed copies which the defendant said she had at her home) and motion on which she relies at approximately 8.50am. The Sheriff arrived at the premises at 9.00am and, unknowingly, appeared on the AVL screen seeking to enforce the writ. I asked the Sheriff to defer any action whilst I heard the application.
The application is brought at the last minute. There has been no compliance with the practice note. As Mr Smith points out, this is the third application for a stay. He directs me to the earlier judgment of Beech-Jones J of 26 February 2020 (ALS 131 Pty Ltd v Rahme [2020] NSWSC 161). It is not necessary that I repeat the background to this application.
Having said all of that, I allowed the application to proceed, having been informed that it involved health and safety issues.
ALS131 Pty Ltd v Rahme [2020] NSWSC 429 | Case summary | Zoe
The defendant relies on three affidavits being affidavits of Trent John Cooper of 15 April 2020, Stuart Keith Foster of 15 April 2020 and Benjamin Graeme Igoe of 15 April 2020. Only unsworn versions had been provided to the Court at the time of the hearing but the defendant informed the Court that she had sworn or affirmed versions and undertook to attend at Officeworks to send them through after the application (which she ultimately did).
The plaintiff did not object to the admission of these affidavits.
The defendant also purports to rely on her own affidavit which she has undertaken to provide to the Court this morning. She spoke to the affidavit in her submissions.
The plaintiff relies on an affidavit of Samantha Parsons (the solicitor for the plaintiff) affirmed 16 April 2020, which sets out the background to the matter and some exchanges over the last month dealing with the issue of the enforcement and the plaintiff's intention to proceed with enforcement.
The plaintiff opposes any stay of the execution of the writ of possession. Ordinarily, it would be on strong ground.
However, the defendant advances two reasons in support of her application which relate to the current public health and economic crisis.
Firstly, she says that she has taken no steps to prepare for the eviction. She says that she understood as a result of publicity about these matters that the Sheriff would not be taking steps to enforce the writ.
Whether or not that be so, it is plain that she was aware, at least by 23 March, that the plaintiff intended that the eviction would proceed. It is plain that she was aware, at least over the last few days, that her earlier understanding of the position was incorrect. I would not be granting a stay based merely on her decision not to prepare to move out, although it is relevant that she says that she was under a misunderstanding arising from the current crisis.
In addition, the defendant relies on health and safety concerns for her three tenants/lodgers. The matters set out in the affidavits of Mr Cooper, Mr Foster and Mr Igoe provide a new and novel reason for the granting of a short stay.
Mr Cooper lives with the defendant at the premises. He came to live at the house after becoming homeless following loss of his employment as a plumber. He contracted HIV in 2016. Since that diagnosis, he has suffered constantly with his mental health and suffers severe depression and anxiety which he finds difficult to control. He refers to the stability provided by living at the premises. He also says that he believed that eviction would not go ahead based on his inquiries with the Office of the Sheriff of NSW. He says that it would be very dangerous for someone in his situation to again become homeless because of his compromised immune system.
Mr Foster has been living at the premises since 13 September 2019. He says that he was homeless for the six months prior to residing at the premises. He has been provided with board and lodgings in return for undertaking labour. He suffers from long-term mental health issues, including anxiety, bipolar disorder and drug addiction. He is currently serving a two-year suspended sentence that commenced 22 October 2018. He has been unemployed on a long-term basis. He also points to the stability that has arisen as a result of living at the premises and that he has been able to cease taking drugs. He points to a marked improvement in relation to his anxiety and bipolar disorder. He says that, if forced to be homeless again, he does not believe that he will be able to comply with the public health restrictions and has a concern that his homelessness may cause him to re-offend and return to prison.
Mr Igoe is also unemployed. He has applied for Job Seeker payments and is currently awaiting his first payment. He has been living at the premises since October 2019. He was only informed that the eviction would proceed on 13 April. He said that the Office of the Sheriff of NSW had previously confirmed that all evictions were on hold and information to the contrary was only discovered when the defendant checked the status of evictions. He has no alternative accommodation and will be made homeless immediately. He also says that, if made homeless, he does not believe that he will be able to comply with the current public health orders relating to restrictions on movement.
The plaintiff refers to the earlier decision of Beech-Jones J dismissing the defendant's stay application. The plaintiff emphasises that this is the third application. The plaintiff points to prejudice in the sense that this process has been going on for over a year and the plaintiff has been unable to take steps to sell the property because of the applications by the defendant. The basis of the application is not that there is any issue as to default or non-payment by the defendant.
The plaintiff relies on the principles set out in GE Personal Finance Pty Ltd v Smith [2006] NSWSC 889 ("GE Personal Finance"). As observed by Johnson J, there are three common circumstances advanced on a stay application. The circumstances of this application do not fall within any of those three common circumstances.
Further, there are a number of relevant considerations which might mitigate against a stay.
Yet, as also observed in GE Personal Finance at [9]:
"The Court has a discretion whether to stay the execution of a Writ of Possession issued in proceedings of this type. It is a power which is sought to be exercised frequently and in a variety of circumstances. There can be no prescription of the circumstances in which this important discretionary power ought be exercised."
In my view, the circumstances in this matter are extraordinary. It is certainly puzzling that the evidence of Mr Cooper, Mr Foster and Mr Igoe was not brought to the attention of the Court in any earlier applications but the defendant relies on their evidence today and their affidavits have been admitted without objection.
The extraordinary circumstances are the current health crisis and that four persons would be rendered homeless, three of whom suffer from health issues which would likely be exacerbated by any period of homelessness in the current environment, with a possible associated risk to the public.
Irrespective of whether this situation could have been avoided by the defendant taking steps to prepare for the Sheriffs' attendance this morning, she did not take the necessary steps.
In these circumstances, I am prepared to grant a stay for a period of one month. The purpose of granting that stay is to enable the defendant, Mr Foster, Mr Igoe and Mr Cooper to organise their departure from the premises in an orderly way.
I wish to make it plain that I am granting the stay on the basis of public health concerns and concerns as to the safety and health of Mr Cooper, Mr Foster and Mr Igoe.
The health issues have not been raised in any earlier application. They have now been raised.
I have made it plain to the defendant that she should prepare to leave the premises over the next month and that it is difficult to envisage any other circumstances in which a further stay or deferment will be granted.
I order that the execution of the writ of possession be stayed until 16 May 2020. That is, that the writ of possession not be executed by the Sheriff prior to 16 May 2020.
As requested by Mr Smith, lest there be any uncertainty, I emphasise my intention is that the writ of possession may be executed at any time on 16 May 2020 or thereafter. This is not a general stay. It is not necessary for there to be any further application to be made to enforce the writ.
I grant liberty to the parties to apply to relist the matter before me by contacting my chambers on 24 hours' notice.
[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: 22 April 2020