Bendigo & Adelaide Bank Ltd v Karamihos

Supreme Court of NSW|2014-07-29|Before: Garling J, Pembroke J

EX TEMPORE Judgment 1Urgent application has been made on behalf of Mr Steve Karamihos and Mrs Aristea Karamihos by their solicitor, Miss Bechara, for a stay of the execution of a Writ of Possession which is due to be executed at 10am this morning, 29 July 2014. 2The basis of the application for a stay is that the applicants, who are both aged in the early part of their ninth decade, are in poor health and any eviction will cause them stress and anxiety, with the result that their health will deteriorate. It is claimed that notice was effectively only received yesterday that they would need to move out this morning, and they have had inadequate time to deal with their possessions, and make appropriate arrangements for their accommodation. 3In addition, a submission is made that the Bank would not be prejudiced by any stay on the execution of the Writ because all loan arrears have been paid (although the principal loan remains outstanding). As well, the applicants' daughter, Ms Antoniou, has agreed to maintain repayments on the loan and has, together with her husband, agreed to buy the property from her parents at market value and borrow monies to pay out the loan to the plaintiff. 4According to an affidavit of Miss Antoniou, sworn and filed this morning, she has spoken to a finance broker who has told her that her application for finance would be completed in approximately six to eight weeks and she seeks, on behalf of her parents, a stay of the Writ of Possession for that period of six to eight weeks to enable her husband and herself to complete the application for finance.

Procedural History 5It is apparent that these proceedings have been on foot for a considerable period. Proceedings were first commenced by a Statement of Claim filed in 2009. Quite what happened with the progress of the case towards a hearing is not entirely clear to me. 6However, the matter came on for final hearing and was heard by Pembroke J. His Honour delivered a decision on 8 March 2013, in which he held that both the loan contract and mortgage between the Bank and the applicants were unjust within the meaning of the Contracts Review Act 1980 and the National Credit Code. Pembroke J made orders which had the effect of relieving the applicants from their liabilities to the Bank other than in respect of a portion of the loan. His Honour's reasons are to be found at Steve Karamihos and Aristea Caramihos v Bendigo and Adelaide Bank Limited, Bendigo and Adelaide Bank Limited v Steve Karamihos and Aristea Karamihos [2013] NSWSC 172. 7The Bank appealed from the decision of Pembroke J. On 14 February 2014, the Court of Appeal determined that the appeal ought be allowed and that the applicants had failed to establish that either the loan contract or mortgage were unjust. See Bendigo and Adelaide Bank Ltd v Karamihos [2014] NSWCA 17. 8On 25 March 2014, after receiving submissions from the parties with respect to the form and content of the orders to be made, the Court of Appeal ordered that possession of the relevant land be given to the Bank, and further ordered that leave be granted to issue a Writ of Possession. In addition, a monetary judgment was entered in the sum of $1,421,482.52. See Bendigo and Adelaide Bank Ltd v Karamihos (No.2) [2014] NSWCA 76. 9Consequent upon the delivery of the two judgments in the Court of Appeal, the applicants have filed an Application for Special Leave to Appeal to the High Court of Australia. This application has not yet been determined by the High Court.

Previous Application for a Stay 10On two occasions since that Application has been filed, the applicants have sought a stay of the orders of the Court of Appeal including the execution of the Writ of Possession. 11In an affidavit, Mr Anthony Steven Margiotta, a solicitor who has acted for the applicants in the litigation to date, deposes that he first requested a stay of the orders of the Court of Appeal on 19 May 2014, and that request was refused on 29 May 2014. It is unclear to me whether that was a request made to the Bank or an application to the Court. That does not matter because Mr Margiotta makes it plain that a further application for a stay of the orders of the Court of Appeal of 25 March 2014 was heard by Barrett JA in the Court of Appeal on 8 July 2014. In a judgment delivered on 11 July 2014, the application for a stay was refused. See Karamihos v Bendigo and Adelaide Bank Ltd [2014] NSWCA 221. 12Application was then made to the High Court of Australia for a stay of the execution of the Writ of Possession. I am informed by counsel for the Bank that Bell J heard that application yesterday (28 July 2014), and that her Honour refused it. Specifically, the High Court of Australia was asked to stay the Writ of Possession, which is due to be executed today and declined so to do. See Karamihos & Anor v Bendigo and Adelaide Bank Limited [2014] HCA Trans 155.

Further Application to this Court 13It does seem that since the decision of the High Court of Australia yesterday the applicants have instructed, through their daughter Miss Antoniou, a new solicitor, Miss Bechara, to make this application this morning. It must be said that Miss Bechara, in the short time available to her, has done her very best to put all matters that are relevant before this Court. 14She puts, as I earlier outlined, that the age and state of health of the applicants would cause this Court to have regard to their personal circumstances in granting a stay of the execution of the Writ of Possession for a period sufficient to enable Miss Antoniou and her husband to make arrangements for the purchase of the property. 15Miss Bechara also puts that the applicants have not been on notice of the need to vacate the property until yesterday. I am unable to accept that the applicants have not had notice of the execution of the Writ of Possession taking place this morning until yesterday. Their solicitor, Mr Margiotta, says in his affidavit, which was filed on 24 July 2014, that the Writ was to be executed today. It may be that the applicants have not wished to confront the unpalatable fact that they will lose their home and be forced to vacate it. As well, it is obvious that they have taken considerable steps and efforts to avoid, by delaying, the consequences of the orders of the Court of Appeal, including the execution of the Writ of Possession.

Discernment 16Whilst I have considerable sympathy for the applicants, I am wholly unpersuaded that this Court should exercise its discretion to stay the execution of the Writ of Possession, in aid of the application for special leave to appeal to the High Court of Australia. 17The jurisdiction to grant such a stay requires that an applicant must show exceptional circumstances before an order is made. See Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd [1986] HCA 84; (1986) 161 CLR 681. 18The simple facts are these. The Court of Appeal ordered that the Bank was entitled to possession about four months ago. The applicants have sought, on what seems to me to be essentially the same bases, to have the execution of the Writ of Possession stayed, first by the Court of Appeal with respect to its own judgment, and then by the High Court of Australia in support of the Application for Special Leave to Appeal. Neither the Court of Appeal nor the High Court of Australia has thought it appropriate to stay the execution of the Writ. 19Now, at a time well past the eleventh hour, an urgent application is made to this Court for the same relief, essentially upon the same basis. I am unpersuaded that any exceptional circumstances have been shown for this Court to intervene at this point of time. No different basis is put before this Court than was apparently relied upon before the Court of Appeal or the High Court of Australia. I am not satisfied that this Court should exercise any discretion, assuming for present purposes, that it does exist. 20Accordingly, I refuse to grant the orders set out in the Motion. 21In order to regularise the proceedings this morning I make these orders: (1)I grant leave to the defendants to file in Court a Notice of Motion dated 29 July 2014. (2)I order that the Notice of Motion be returnable instanter. (3)I grant leave to the defendants to file in Court an affidavit of Anne Antoniou dated 29 July 2014. (4)I dispense with any requirement for further service of those documents. (5)I dismiss the Notice of Motion filed 29 July 2014. (6)I order the defendants to pay the plaintiff's costs.

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: 14 August 2014

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