Arambasic v Veza

EX TEMPORE Judgment 1Before me is a notice of motion dated 14 April 2014. The notice of motion was filed when there was one plaintiff to the proceedings, namely Mr Steve Slobodan Arambasic. 2The notice of motion seeks four orders. The first order is said to be an order for "interim possession" of a house at an address in Potch Street, Lightning Ridge. The second is an order requiring the defendants pay to Mr Arambasic expenses related to their occupation of that property. The third is an order seeking leave to amend Mr Arambasic's original statement of claim to add Ms Jasmin White as a party to the proceedings as a second plaintiff. The fourth is an order that there be no order as to costs for the hearing of the motion. 3The third order appears to have been resolved by agreement. On or about 5 May 2014, an amended statement of claim was filed which named Mr Arambasic and Ms White as plaintiffs. The original defendants, Kay Veza and Gary Griffith, who are the occupiers of the house in Lightning Ridge, remained in the proceedings. 4The background to the proceedings was described in the judgment of Davies J in Arambasic v Veza [2014] NSWSC 258 at [1] to [5] ("Arambasic (No 1)") and further discussed in the judgment of Hall J in the same proceedings, Arambasic v Veza (Supreme Court (NSW), Hall J, 7 April 2014, unrep) ("Arambasic (No 2)"). 5By way of brief summary, Ms White was the original registered proprietor of the property. She entered into an agreement with the defendants described as a form of instalment purchase agreement in or about September 2005 (the "instalment agreement"). Under that agreement the defendants agreed to pay her a deposit of approximately $10,000 and to pay 1,308 instalments of principal and interest of $150 per week. The property was not transferred to the defendants. It was not intended that it would be transferred until they completed the purchase of the property. The instalment agreement conferred upon the defendants a right of possession of the property during its subsistence. 6As noted by Davies J in Arambasic (No 1) at [3], at some point the instalments ceased to be paid. The affidavit evidence reveals a sharp disagreement about the circumstances in which that occurred and whose fault it was. 7At a later time, Ms White "sold" the property to Mr Arambasic. Apparently the transfer records a purchase price of $1. However, the affidavit evidence reveals that the purchase price was $70,000 on what is described as an "as is" basis, namely Mr Arambasic taking the property, knowing that it was occupied by the defendants. Upon becoming the registered proprietor, Mr Arambasic filed proceedings seeking possession. 8The defendants eventually filed a defence which was then amended. Reading it at its perhaps most generous, the defendants' case appears to be as follows. They claim they were conferred with a right for possession under the instalment agreement. They say that their inability to make instalment payments was due to the fact that they could not locate Ms White who did not press for payment. Eventually they say they located Ms White and entered into a further agreement with her, pursuant to which she agreed to waive the outstanding instalments. Instead they agreed that they would jointly co-operate in a sale of the property with the proceeds to be applied towards the payment of the outstanding debts owing on the property, with a repayment to the defendants of an amount representing their payments. Although not perhaps clearly pleaded, it appears to be implicit in their defence that, while that arrangement was being effected, the defendants' rights to possession under the instalment agreement continued. The defendants further say that, notwithstanding the transfer of the property to Mr Arambasic, they can resist his otherwise indefeasible rights because they claim the transfer was a fraud designed to defeat their rights. 9This claim of fraud has caused significant angst in the proceedings to date. It appears to be the defendants' case that the inference of fraud arises from the listing of the purchase price on the transfer as $1 and the suggestion of some form of close relationship between Ms White and Mr Arambasic. The affidavits filed by Ms White and Mr Arambasic hotly dispute all those contentions. 10In Arambasic (No 1), Davies J addressed a motion filed on behalf of Mr Arambasic to strike out the defence and obtain judgment for possession. His Honour was concerned that there was not sufficient evidence from the defendants that could support their allegation of fraud. His Honour adjourned the matter to the Duty Judge's list on 7 April. On that day, Hall J found, inter alia, that there was "some evidentiary material to support the proposed defence". His Honour dismissed the application, which his Honour described as being either for summary judgment or default judgment (Arambasic (No 2)). 11Before me, the plaintiffs rely on a number of affidavits, many of which pre-dated the judgment of Hall J in Arambasic (No 2) and some of which post-date it. It is not clear whether all the affidavits that predated the judgment of Hall J were read before his Honour, but it does not matter. 12Before me, the plaintiffs explained that the order for "interim possession" that they seek was some form of order in which they wanted Mr Arambasic to resume occupation of the house pending the outcome of the proceedings on the understanding that, if he failed, he would vacate in favour of the defendants. They stated that the necessity for the order in this form arose because Mr Arambasic has stated on oath that he is living in a van next to a house in the same street as the property and this was causing him personal difficulty, particularly in the light of certain health issues. 13There is really no such form of relief known as "interim possession". By definition, an order for possession is final relief and most likely relief in rem (Birch v National Australia Bank Limited; Campbell v Illawarra Gold Club Pty Ltd (No 4) [2014] NSWSC 503 at [8] per Adamson J). There is in substance no difference between the relief sought in order 1 of the notice of motion filed 14 April 2014 and the relief that was sought before Davies and Hall JJ. For the Court to entertain the application for order 1, it would need, at a minimum, to be satisfied that there was some new fact or circumstance that warranted a revisitation of the judgment dismissing the motion for summary judgment. Having read the material relied on, no such new fact or circumstance is made out. Instead, the position remains as it was when it was decided by Hall J in Arambasic (No 2), namely, that there are a number of contested issues of fact which the courts do not resolve on applications for summary judgment or other forms of interlocutory relief. 14Accordingly, the application for order 1 of the Notice of Motion must be refused. 15As I have noted, order 2 seeks an order that the defendants pay to the plaintiff the expenses related to their occupation of the property. When pressed to identify what those expenses were, two items were nominated. The first was council rates, of which an amount of around $700 or so is said to be outstanding. The second was said to be mortgage repayments, which apparently are payments made by Mr Arambasic to Ms White under their arrangements for Mr Arambasic to purchase the property. 16Whatever could be said about the second item, it certainly does not answer the description of an expense relating to the occupation of the property. In relation to council rates, I can see no basis upon which the defendants can continue to decline to make those payments. However, at this stage, there is also no basis on which I could make any interim order to that effect. Instead, if the defendants do not make those payments, they will simply form part of an amount claimed by the plaintiffs at a final hearing. In particular, even if those amounts do not form part of a claim for damages, I would still expect that they would inform any form of relief that the Court might mould in favour of either party. 17Of course there is an unsatisfactory aspect to this in that it means that Mr Arambasic is put in a position of hardship of having to continue to pay expenses in respect of a property he cannot occupy when, according to him, he is in difficult circumstances. As I sought to explain to the parties, the only way of addressing those matters is to have a final hearing of the proceedings as soon as possible. 18It seems to me that in circumstances where the Court receives evidence from a plaintiff in a possession case that they are living in a van because they cannot take advantage of what they claim is their rightful right to occupy residential premises, then that is a very strong matter why some form of expedition should be granted to the hearing of the case. This is particularly so in circumstances where it appears, and I say appears, that the defendants are not contributing to the costs of their own occupation of the property. Accordingly, I will shortly make an order that the parties be referred to the Manager of Listings to obtain an early hearing date. The plaintiffs have indicated that they have filed all the affidavits and evidence upon which they rely. It is not clear whether that is the position for the defendants and I will shortly make an order giving them some time in which to file any further affidavit material. 19One matter that was raised on behalf of the defendants was the possibility that they may seek to join the solicitor who acted for both them and Ms White in relation to the instalment agreement. To date no application for leave to file a cross-claim has been made. I do not think the possibility that leave might be sought to file such a cross-claim should in any way hold up the obtaining of a hearing date. Without wishing to consider hypothetically the question of whether such leave would be granted, it seems that the quantification of any claim against the solicitor is a matter that could not occur until the outcome of these proceedings is known. 20There was also discussion about the referral of the matter to mediation. Given the modest amounts involved compared to the likely costs of the proceedings, there is good reason to refer the matter for mediation before a Registrar in the time before the proceedings are heard. 21Accordingly, the Court makes the following orders: (1)The balance of the notice of motion filed on behalf of the First Plaintiff on 14 April 2014 be dismissed. (2)The parties be referred to the Manager of listing services to obtain the earliest possible hearing date subject to such hearing date being not earlier than eight weeks from today, with an estimate for the hearing of two to three days. (3)The defendants file and serve all further affidavits upon which they seek to rely on or before 12 June 2014. (4)The matter be referred to mediation before a Registrar, such mediation to occur at the earliest possible time and no later than fourteen days before any hearing date. (5)There be liberty to apply to the Duty Judge on three days' notice. 22One matter that then arises is the question of the costs of the motion. The parties debated this while debating the merits of the motion. Counsel for the defendants sought an order that the plaintiffs pay the costs of the motion and that they be payable forthwith. He submitted that the substance of the motion was, as I have found, no different in reality to that which was heard and rejected by Hall J in Arambasic (No 2). 23Ms White submitted that the motion was necessary because, at the very least, she needed to be joined as a party to the proceedings. She pointed out that this had come about at the instigation of the defendants because she had commenced her own proceedings in the Local Court. In the course of those proceedings, the defendants had referred the Local Court to the existence of these proceedings. 24There is some force in what Ms White says, although I note that so much of the notice of motion that sought to join her was consented to on an earlier occasion. 25In the end, the substance of what was debated today was, as I have said, no different to what was determined by Hall J in Arambasic (No 2). Even though the plaintiffs may be under a misapprehension to that effect, there is simply no reason why the defendants should have to incur legal expenses because of that misapprehension. However, given the likely proximity of a hearing date, I do not think it would be in the interests of justice for any such order to be made payable forthwith. 26Accordingly, I order the plaintiffs to pay the defendants' costs of today.