St George Bank – A Division of Westpac Banking Corporation v Clavijo (No 2)

EX TEMPORE JUDGMENT (REVISED)

1. I made some observations at the commencement of this hearing about the proceedings before me yesterday and the decision I made then (see St George Bank – A Division of Westpac Banking Corporation v Clavijo [2025] NSWSC 1367) and have explained why I am conducting this further hearing now at about 5.30pm.

2. Doubtless, the Office of the Sheriff at Parramatta has closed for the afternoon. However, if I decide to grant the stay, I will direct that the plaintiff fax the Office of the Sheriff and advise them of my decision, and there will still be sufficient time for the execution of the writ of possession to be stayed. Fundamentally, the dispute has come down to who should be permitted to sell the property, whether it be the plaintiff mortgagee (the bank) (who has a judgment in its favour and has regularly issued a writ for possession in accordance with procedures of the Court) or Mr Clavijo, the defendant.

3. One cannot help but have a great deal of sympathy for a person in Mr Clavijo's position who is now facing the prospect of being evicted from his home within a period of about 15 hours. So far as the new material produced to me this afternoon is concerned, I am of the view that what is proposed is something more business‑like by Mr Clavijo in relation to the sale of the property in the ordinary course of events than yesterday’s proposition.

4. Notwithstanding the sympathy I feel for his position, as I observed at the start, the opportunity to sell really has passed. There has been a great deal of debate about the attitude of the trustee in bankruptcy in respect of the property of the co‑owner, Mr Clavijo's former partner. Doubtless, any sale involves the interests of the trustee in bankruptcy, and of course, the trustee would have a say in the sale price. Generally speaking, the trustee in bankruptcy is typically content with a public auction as a means of testing the market. But the basic matter of importance is that neither party have obtained any direct evidence, even by way of a letter, from the trustee in bankruptcy as to his or her attitude, perhaps because of the way these matters have developed. I note that this is fourth application by the defendant.

5. I am not prepared to act on such an important matter on hearsay information either from Mr Clavijo or from, with respect, the solicitors for the plaintiff. As I say, fundamentally, the trustee will want his or her interest in the equity of the property realised however that is achieved, and their right cannot be gainsaid by either party, obviously.

6. The matter has not been an easy one to decide, but I am satisfied by the arguments of Ms Abdikarin that there are still uncertainties concerning compliance with complex conditions as to the sale of the property and payment of the debt by Mr Clavijo. I wish to make it clear that I am not persuaded by the argument that Mr Clavijo might simply pull out of any sale. I am satisfied, from what he has said from the Bar table about his acceptance of the fact that sale is necessary now, and that he would, albeit very belatedly, recommence mortgage payments, that he is stating his position with complete sincerity.

7. However, I am of the view that the time has passed, regrettably, for an arrangement to be put in place on a satisfactory basis which would allow Mr Clavijo to be in charge of the sale. I accept the evidence he has put forward, and I accept his submission that his property is worth significantly in excess of the total indebtedness due to the bank. However, the critical factor really is that the time has now come for the legal process to take place, and it must follow its usual course. I am not satisfied that the streamlined proposal that has now been put forward, as opposed to the proposal that was put to me yesterday, makes a material difference to that central consideration governing the exercise of my discretion.

8. For those reasons and the remarks I made at the outset, the notice of motion filed today is dismissed.

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