[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
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EX TEMPORE JUDGMENT (REVISED)
In this matter the respondent brought proceedings in the Supreme Court seeking immediate possession of two apartments owned by the appellant in Randwick. The appellant had been guarantor on a loan made to a company, Rohailla Holdings Pty Ltd, which she described as her "company vehicle". Judgment in favour of the respondent was delivered on 19 July 2024, granting the orders sought by it: PF 473 Pty Ltd v Qasim [2024] NSWSC 874. The appellant filed a notice of appeal on 14 August 2024, within the time allowed. In prayer 4 of the notice of appeal she sought a stay of the orders that had been made by Faulkner J at first instance. That notice was filed nearly two months ago. Mr Newton SC, appearing for the respondent, has indicated that an adjournment has been granted by the registrar of this Court on two occasions with respect to the appellant's application for a stay. On both occasions Ms Qasim apparently indicated that she sought an adjournment in order to seek legal advice.
The stay application before this Court is currently listed for hearing on Monday 21 October 2024. I have been informed, and have no reason to doubt, that the respondent took possession of one of the units - unit 3 - on or about 15 September 2024. The respondent says that the appellant has been aware of that fact since on or about 19 September 2024. Ms Qasim is living in the other unit - unit 4. Unit 3 has been listed for auction by the respondent on Saturday 19 October 2024.
Last Monday, 30 September 2024, Hmelnitsky J granted an interlocutory injunction until 4pm today restraining the respondent from taking further steps to take possession of the two units. That injunction was sought on an ex parte basis. In those circumstances it is incumbent on the appellant to make out a case for continuation of the injunction.
Ms Qasim was represented in the hearings below but hitherto has not been represented in this appeal. A new firm of solicitors, Somerville Legal, filed a notice of appointment yesterday, 8 October 2024. Ms Azar of that firm appeared before me today. She sought an extension of the interlocutory injunction granted by Hmelnitsky J, being order 1 made last Monday.
Ms Azar candidly accepted that the effect of extending order 1 would be to prevent the auction going ahead for unit 3, currently listed for Saturday week. Ms Azar applied for an extension of the injunction for some two weeks, that is through until Wednesday 23 October 2024. The reasons she gave were as follows. She received instructions from the appellant at about 4 o'clock last Friday. She has received the court book below, she has not yet had time even properly to read the judgment of Faulkner J, let alone to master the court book or the legal issues raised. She has indicated that she does not consider she would be ready to make an application for a stay next Monday 14 October 2024, being a date suggested by me. She indicated that she did not have counsel briefed yet. She said that to be ready to make a stay application next Monday was "unrealistic" and would be "quite tight in time".
Mr Newton for the respondent opposed the extension sought on behalf of Ms Qasim, that is for a further two weeks. He identified the prejudice that would be suffered in terms of the auction having to be postponed. I have no reason to doubt that in the ordinary course of things the auction has been planned for some time and there has been money expended in terms of advertising and the like to get the property ready for auction and promote it in the usual way to the public.
The issue before me, in substance, is whether or not to extend the interlocutory injunction granted last week by Hmelnitsky J. As usual, it is necessary for me to consider: whether there is a serious question to be tried sufficient to warrant a grant of interlocutory relief; the balance of convenience; and whether or not an undertaking as to damages is offered. Addressing the last first, such an undertaking was offered by Ms Qasim last week and had been offered again today. No adverse comments were made by the respondent with respect to the nature or substance of the undertaking. It is not necessary, in all the circumstances, for me to address whether there is a serious question to be tried sufficient to grant some interlocutory relief. The real issue before me is the balance of convenience where there are three possibilities. The first is that, as sought by the respondent, I make no extension of the injunction granted. The second possibility is that I extend the injunction so as to facilitate the making of a stay application before the referrals judge on next Monday 14 October. The third possibility is, as sought by Ms Azar, to extend the injunction for some two weeks.
Mr Newton candidly accepted that he could point to no prejudice suffered by his client were I to take option 2 and facilitate the stay application being heard next Monday. In those circumstances, it is plain to me that the real issue I need to address is whether or not the injunction should be extended beyond that for the period sought by Ms Qasim.
I accept what has been put to me by Ms Azar in terms of only recently having been briefed, the difficulty of getting on top of a case of the kind before me, and that it would be tight to be prepared by next Monday. That being said, it is relevant that the application for a stay has been on foot for nearly two months. Whilst it is plainly in the interests of justice, of Ms Qasim, and quite possibly also of the respondent, that Ms Qasim have the chance to obtain legal advice, there are, nevertheless, limits to the extent to which time will be allowed for that to occur.
Given that next Monday is still some five days away it seems to me that whether tight or not it is entirely possible for competent lawyers to be prepared for a stay application by then. It is by no means unusual for practitioners to be expected to work on weekends to meet tight deadlines in circumstances of urgency. There is no reason for me to doubt that Ms Azar and any counsel she briefs are not perfectly capable of rising to the challenge in the usual way expected of legal practitioners. There is potential detriment of significance to the respondent if the injunction were to be extended for a further two weeks.
In all the circumstances, I am not persuaded that the balance of convenience or the interests of the administration of justice favour such a long extension. Any arguments as to whether or not a stay should be granted, with the correlative effect of preventing the auction going ahead, can be put to the referrals judge on Monday of next week. Nothing I have said in this judgment should be taken to pre-judge the merits of any such application. All that is before me today is whether or not to extend the interlocutory injunction granted last week. It is neither necessary nor desirable for me to express any view as to whether Ms Qasim has a sufficiently arguable case to warrant either an extension of an injunction or the grant of stay extending beyond the beginning of next week.
I will grant an injunction until 4pm on Tuesday of next week and will also direct that the application for a stay be listed for hearing on Monday of next week in order to enable these issues to be determined in reasonable time and at the beginning of next week by the Court of Appeal referrals judge. It is appropriate that rather than simply extending the order made by Hmelnitsky J last Monday, I make a new order in this Court in substantially the same terms, on the timeframe I have outlined.
The orders of the Court will be as follows:
1. Upon Shaheen Qasim giving the usual undertaking as to damages, PF 473 Pty Ltd is restrained from taking any further steps to take possession of the properties at 3/5 and 4/5 William Street Randwick NSW until 4pm on Tuesday 15 October 2024.
2. The appellant's application for a stay of the orders made in the Supreme Court is listed for hearing before the Court of Appeal referrals judge on Monday 14 October 2024, and the listing of that application on 21 October 2024 is vacated.
3. Costs of the appellant's application for an interlocutory injunction will be costs in the cause.
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Decision last updated: 10 October 2024