Commonwealth Bank of Australia v El Halabi

File Number(s): 2024/00347048

Publication restriction: Nil

REVISED EX TEMPORE JUDGMENT

1. The present matter concerned a Notice of Motion (“the Motion”) filed by the second defendant, Mr Chahid El Halabi, on 23 September 2025. The plaintiff, being the respondent on the Motion, is the Commonwealth Bank of Australia (“the Commonwealth Bank”).

2. When the matter was listed before this Court on 23 September 2025, the opportunity was given to both parties to consider their position in relation to the Motion, which sought:

“seven days to re-enter property, gain access to live in the property”.

3. The property in question, about which the Motion is addressed, is a property at Yagoona NSW (“the property”).

4. The pause in the proceedings was, in part, designed to allow Mr El Halabi to re-enter the property to gain documents in order to assist in the prosecution of the Motion, and also, if he was able to, to seek any legal assistance that he may wish to seek in order to deal with the matter.

5. In support of the Motion, there is an affidavit from the second defendant attesting to a number of things, but significantly, to questions of hardship. That affidavit is Exhibit 1 in the proceedings.

6. Overnight I also received what appears to be a partial email concerning an officer of the Commonwealth Bank, which will be marked as Exhibit 2.

7. I also received a photograph of a bedroom housing the applicant’s children at his mother-in-law’s residence which will be marked as Exhibit 3.

8. Finally, I received written submissions from the second defendant which attested to the reasons why relief was sought and to his circumstances.

9. I was provided with an affidavit on behalf of the Commonwealth Bank by Ms Susan Vergins dated 23 September 2025 (“the Susan Vergins affidavit”) detailing the history of the matter. The Susan Vergins affidavit will be marked as Exhibit A in the proceedings.

10. As was conceded by Mr El Halabi, and as was evident from the Susan Vergins affidavit. The Commonwealth Bank obtained judgment against Mr El Halabi and his wife in proceedings before this Court on 22 January 2025, which amongst other things, gave possession to the Commonwealth Bank.

11. As is evident in the submissions made before me, Mr El Halabi was now bankrupt, although he was, he said, taking active steps to discharge that bankruptcy. At about the time of the bankruptcy, the Commonwealth Bank was granted leave to issue a writ of possession of the property.

12. The Susan Vergins affidavit attested to a number of matters bearing upon the present application as follows:

13. The Sheriff’s Office was instructed to stay an execution of the writ of possession. That appeared to have occurred around 16 January 2025.

14. On 2 September 2025, the Sheriff’s Office was asked to reschedule the eviction.

15. Mr El Halabi made reference on a number of occasions to the Case Manager for the Commonwealth Bank, Mr Laurence Payne, during the course of his submissions, albeit that information was obtained on an information and belief basis in the Susan Vergins affidavit. It was clear from that evidence that at various times leading up to 23 September 2025, two things occurred.

16. The first is that at various times, as has been said by Mr El Halabi, he was taking steps to discharge the debt and arrange for settlement in order to effect that discharge.

17. The second is that various communications were forwarded to Mr El Halabi about the prospect of eviction in email chains that are attached to the Susan Vergins affidavit. For example, on 10 September 2025, Ms Nicole Rudd, a paralegal at Gadens, caused a letter to be sent to Mr El Halabi and Mrs El Halabi at the property advising, amongst other things, that the Sheriff’s Office had scheduled an eviction from the property on 22 September 2025. That correspondence is annexed to the Susan Vergins affidavit.

18. Further, on an information and belief basis, the deponent of the affidavit stated that as of 23 September 2025, the relevant loan account showed a balance of approximately $1.2 million with historical arrears of approximately $136,000, with the last payment having been made on the account on 18 December 2023.

19. It was against that background I came to consider the application, albeit with one additional ingredient. That additional ingredient is that today, the Commonwealth Bank agreed to stay any steps to effect the sale of the property until 4:00pm on 2 October 2025. To be clear, I understand that I have received an undertaking from an officer of this Court on behalf of the Commonwealth Bank, that it will not enter into a contract of sale before 4:00pm on 2 October 2025.

20. It is in that context that I return to consideration of the Motion.

21. Ms Woodhouse, who appeared on behalf of the Commonwealth Bank in the proceedings today, suggested that the relief which was sought by Mr El Halabi was in the nature of a mandatory injunction. Whether it is or not relief of that kind, the relief is sought in circumstances where the El Halabi family wish to reoccupy the premises for a period of about seven days, notwithstanding the fact that the Commonwealth Bank is in lawful possession of that property as a result of orders made by this Court.

22. In considering a mandatory injunction the Court would normally attend to questions such as the legal rights existing between the parties at the point that the injunction was under consideration, whether the effect of the injunction was to restore legal rights, if there had been some infringement of them, and the hardship affecting the moving party.

23. I have no doubt, notwithstanding the paucity of the evidence which was before the Court, that the eviction of the El Halabi family from the property in question has created hardship. That hardship seemed to manifest itself in two ways.

24. First, they have not been able to obtain full access to their possessions in the property, notwithstanding it appeared on at least two occasions they have been permitted access for that purpose. Plainly the access that they have received was quite limited.

25. Secondly, the El Halabi family are in what seemed to be cramped accommodation in the household of the mother-in-law, and no doubt some inconvenience was encountered in that respect.

26. It is unclear to me why in the circumstances some short-term rental arrangements were not available to them, but for the present purposes I am prepared to proceed upon the basis that there was hardship demonstrated in the case for Mr El Halabi.

27. However, that circumstance needs to be balanced against the following considerations.

28. First, the bank appears to be in uncontested possession of the property in question having obtained a writ of possession and it being executed.

29. Secondly, the mortgage loan on the property in question has not been paid since 18 December 2023.

30. Thirdly, on the evidence, it appears to me that the notice of eviction was given to at least Mr El Halabi. There might be reasons why that notice escaped his attention or he was unable to act upon it, but it appears to me on that evidence that there is ample to demonstrate that notice was given.

31. Lastly, there appears to me on the face of the material before the Court, to have been some forbearance on the part of the bank in moving to give effect to possession so as to allow the El Halabis an opportunity to discharge the debt and avoid possession. That same approach, in my mind, has been demonstrated today by the bank’s further forbearance in not acting to effect the sale of the property in accordance with the undertaking which has been provided to the Court.

32. Ultimately, the determination of matters such as the present application requires the Court to exercise a discretion, which involves a balancing of considerations. In my view, the balancing of the considerations as I have summarised them, falls against the granting of the relief in question, particularly in light of the undertaking given by the bank.

33. No doubt the El Halabis will seek further limited opportunity to access the property to obtain various goods. I do not propose to make order in that respect. It does appear to me that the Commonwealth Bank acting with goodwill might allow limited opportunities for that purpose, but that is a matter for the bank. If they do so, it is with my blessing in that respect for what that is worth.

34. The order I make is that I refuse the Notice of Motion.

Orders

33. The Court makes the following orders:

34. The Notice of Motion is refused.

**********

Amendments

29 September 2025

[1](first sentence), [5] and [8] - changed "plaintiff" to "second defendant" [1](second sentence) - removed "defendant" and replaced with "plaintiff, being the respondent"