St George Bank – A Division of Westpac Banking Corporation v Clavijo

File Number(s): 2025/74974

Publication restriction: Nil.

EX TEMPORE JUDGMENT (REVISED)

1. I am dealing with what is effectively a third application by Mr Clavijo, who is the first defendant, for a stay of a writ of execution to surrender possession of his home at Blacktown to the mortgagee, the St George Bank which is a division of Westpac Banking Corporation, (the bank) who is also the plaintiff.

2. The first application was made to Dhanji J sitting as Duty Judge on 24 October 2025. His Honour issued a short-term stay of five days to enable time for Mr Clavijo to prepare necessary evidence relating to the prospects of refinancing the property before a further decision was made about whether the stay should be extended.

3. The matter then came before Faulkner J on 29 October 2025 when the application for a stay was renewed. On that occasion, his Honour was not satisfied that the evidence that Dhanji J had allowed Mr Clavijo the opportunity to gather had in fact been put together. In the circumstances, his Honour was not satisfied that grounds for extending the stay had been shown and Mr Clavijo’s second application was refused.

4. At that time, Justice Faulkner seemed to be of the understanding that it may take at least a further two weeks for another appointment for eviction to be organised by the plaintiff, however the Sheriff was able to schedule an earlier appointment for eviction for 6 November 2025, being Thursday of this week. Faulkner J contemplated that the natural effluxion of time involved in the administration of these matters would give Mr Clavijo yet another opportunity to obtain persuasive evidence of a real prospect of refinance, as his Honour put it, which would enable another application to be made to the Court. This is the further application.

5. Since the matter was before Faulkner J, it seems that, on the advice of a broker, Mr Clavijo has made an application for refinance from the National Australia Bank (NAB) online on 30 October 2025. I do not have a copy of the application that was made because Mr Clavijo did not think it necessary to print off a copy of the doubtless pro forma digital document that he populated with his responses for the purpose of his application. But it is quite clear from the letter he has tendered that he has made the application. The application has been acknowledged by NAB by the generation of what I take to be a default response setting out the documents required to assess the application, being fairly standard-type documents required by finance institutions in like circumstances.

6. Mr Clavijo has had difficulty in his employment in the recent past, which he has explained in terms of the bank's conduct in “de-banking” him. He has just recently secured a well-paid position in an industry with which he is familiar and experienced. His difficulty, in part, is that he starts that job tonight and he will be unable to provide, to the satisfaction of NAB, confirmation of his employment, including two recent pay slips, until he has been employed for at least a fortnight with his employer.

7. From the contract of employment, being annexure K to Mr Clavijo's affidavit, it is clear that the salary is paid weekly, and he will be able to satisfy that requirement in a fortnight. Having said that, there are other requirements, and it is far from clear whether NAB will approve a refinance package. Normally, in circumstances like the present, the Court would expect to see an unconditional offer of finance sufficient to discharge the total indebtedness in respect of the property, not only in terms of the first mortgagee but any other secured creditors. Unfortunately, Mr Clavijo is not in the position to demonstrate that.

8. It is also clear there are caveats on title purporting to secure the indebtedness of another creditor being Barclay Finance. Mr Clavijo tells me quite definitively that the debts have been discharged but that the caveats have not. Even accepting that at face value it is still the case that what has been produced by NAB is a long way short of any sort of offer of refinance. I cannot be satisfied with any confidence that Mr Clavijo's hope of a forthcoming offer will be realised.

9. It is also apparent from what Mr Clavijo has said to me that he hopes to be able to rely upon the Australian Government ‘Help to Buy’ Scheme whereby, for eligible borrowers, the government will contribute equity in a home up to 30% of the purchase price of the home for existing residences. Now, that is a scheme which Mr Clavijo has drawn to my attention by tendering a general information printout from the internet. While he is not a first home buyer, he hopes to be able to rely upon an apparent exception in relation to single parents.

10. He is separated from his former partner, the second defendant. They have a child of their relationship and the evidence before me suggests that there is a shared parenting relationship. Whether a shared parenting relationship can support eligibility as a single parent I am unsure. It does not seem, to me, to meet the grammatical meaning of the expression "single parent".

11. I cannot make an assessment one way or another about Mr Clavijo's eligibility under that scheme on the basis of the information that I have, and indeed no application has been made under that scheme because he first needs an unconditional offer from NAB or somebody else to demonstrate that he has the balance of funds necessary to support the purchase. For instance, It is not even clear, at least not to me, whether the scheme applies to a refinance situation rather than another purchase.

12. As an alternative, Mr Clavijo has signed an exclusive agency agreement with a real estate agent who has assessed the market value of the property in the range of $1.2 to $1.3 million which, if realised, would certainly be sufficient to cover his indebtedness to the bank.

13. However, there is a further complication and that is the bankruptcy of his former partner, the second defendant. The trustee in bankruptcy, who has not appeared today but is said to be aware of these proceedings, would wish to realise the value of the partner’s equity in the property in order to discharge his or her duties to the second defendant's creditors, as I am told today by both Mr Clavijo and Ms Nagam, who appears for the bank.

14. I gather from what Mr Clavijo has told me that he has had discussions with the trustee. I also infer that he was hoping that an offer of refinance would enable him to pay out the equity attributable to his former partner's share. However, all of these considerations, if I may say, are contingency upon contingency upon contingency, which demonstrates the difficulty in resolving this application.

15. As I have said, as an alternative to this, Mr Clavijo has proposed being in charge of the sale and has lined up a local agent in that regard. But it seems, again from what he has told me from the Bar table, that in order to realise the sort of value that the agent has estimated, a substantial amount of work has to be done to the property to present it to its best advantage.

16. On Mr Clavijo’s explanation, this is apparently about $100,000 worth of work and he is expecting this can be done by about the middle of December 2025. Thereafter, the property could be shown by way of a soft campaign to interested persons with a hard marketing campaign being pursued in January 2026.

17. From what Mr Clavijo has been told by the agents, they are very bullish, as agents often are when signing up new listings, about the prospect of a quick sale. He has given me a copy of the agents’ game plan which, as I have raised with him, speaks of the idea of an extended settlement period of about 12 weeks. He told me he received advice that there is nothing lost by undertaking the work between now and December 2025 as no one is buying just before Christmas. That may be so, but I do not know that.

18. On the other hand, the point of all of this is that we are talking about a matter of some months for the property to be marketed, sold and the sale settled before the bank could be paid out on the real estate agent's game plan. There is a great deal of uncertainty involved, at least in my judgment. Moreover, refinancing seems to be clearly Mr Clavijo's preference with sale by private treaty being a ‘plan B’, which would suggest that this could not be implemented until attempts at refinancing have been exhausted.

19. The difficulty with both of these options is that neither are certain and both necessarily involve a further aspect of delay, particularly at this time of year anticipating the slow down often associated with the Christmas and summer break. If the bank goes into possession of the property pursuant to the executed writ, its interest is purely commercial, and it is obliged to obtain a fair market price for the property in the exercise of its power of sale.

20. Accordingly, I order that the stay be refused.

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