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[2026] NSWSC 647
Supreme Court of NSW
2026-05-26
Emmett J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: TNAL507 Pty Ltd v Saliba [2026] NSWSC 647
Hearing dates: 26 May 2026
Date of orders: 26 May 2026
Decision date: 26 May 2026
Jurisdiction: Common Law
Before: Emmett J
Decision: Vacate orders 1 to 6 made on 21 May 2026.
Catchwords: LEASES AND TENANCIES – Ejectment – Stay of possession – where prior orders made to stay writ of possession – where order to pay money which accompanied the stay was not complied with – where applicant now presses for stay on further ground of prospective sale of property – where evidence as to prospect of a sale unreliable – stay discharged
Cases Cited: GE Personal Finance Pty Ltd v Smith [2006] NSWSC 889
Category: Procedural rulings
Parties: TNAL507 Pty Ltd (Plaintiff)
Antoinette Saliba (First Defendant)
Christopher Saliba (Second Defendant)
Representation: Counsel:
M Bennett/D B Andrews (Plaintiff)
A Strik (Defendant)
Solicitors:
Summer Lawyers (Plaintiff)
Macquarie Law Group (Defendant)
File Number(s): 2025/00496506
Publication restriction: Nil
On Thursday 21 May 2026, by consent, I granted a stay of a writ of possession in respect of a property in Glenorie NSW on terms that included the payment of $270,000 by 5pm on Friday 22 May 2026. [1] On that occasion, following a hearing before me which was contested until near the end of the hearing, the defendants’ counsel confirmed that they accepted the order for payment of $270,000 as, in effect, the price of the stay. The Court took a short adjournment so that the parties had an opportunity to obtain instructions on the proposed terms of the stay before the consent orders were made on 21 May 2026.
As events transpired, the defendants did not pay the $270,000 by 5pm on Friday and the plaintiff took steps to have the matter relisted. The matter was relisted before me today.
The plaintiff seeks that the stay be discharged.
The defendants have adduced further evidence from Socrates Kitas, who says that he is a property developer who has been in discussions with the defendants concerning funding arrangements, repayment of the secured debt and the proposed acquisition of the property.
Mr Kitas said that the financing that was available for $270,000 was still subject to loan documentation being prepared, and that the lender required completion of security documentation concerning the nominated motor vehicles forming part of the secured position prior to release of funds.
None of this was disclosed to the Court at the hearing on 21 May 2026. Mr Kitas says in his affidavit, “[t]he funding arrangements remained in the process of completion pending satisfaction of the lender’s security and administrative requirements.” The defendants’ counsel before me today confirms that it is difficult to reconcile this with the terms of the letter of offer, which stated that the facility approval was unconditional, that it was not subject to any further due diligence requirements, that the borrowers had satisfied the lender’s requirements for funding and that the lender was ready, willing and able to fund the facility.
This leaves the Court in the position where it does not appear that the defendants have presently available financing for $270,000, nor is there any indication of when that will be available, and there is evidence that the availability of finance may in fact be subject to the lender’s security and administrative requirements being satisfied.
Furthermore, the Court is left in a position where it appears that the instructions being given by the defendants to their counsel may not be reliable. I make no criticism of the defendants’ counsel, who has been forthright, including in making appropriate concessions throughout both hearings before me. Everything before me indicates that the defendants’ counsel has pursued his clients’ interests so far as is professionally practicable, while being mindful of his overriding duty to the Court. I have no doubt he has acted at all times in accordance with his instructions. The consequence of this is that there is reason to doubt the reliability of those instructions.
The basis on which the defendants press for a stay has shifted since 21 May 2026. On 21 May 2026, the principal reason for the stay was said to be the prospect of refinancing.
Both parties have placed before me the valuation report that was obtained in April 2026, dated 23 April 2026, being a valuation report to which reference was made during argument on 21 May 2026. The report values the property at $2.9 million.
While I recognise that that indicates a buffer above the amount owed to the plaintiff of around about 10% of the secured debt, I need to proceed on the basis that properties not infrequently sell for less than the valued amount.
More seriously, the plaintiff's counsel has drawn the Court's attention to a term of the offer of refinance of the real property (which was before the Court on the last occasion) indicating that the proposed refinance was $2.5 million or 69.8% of the appraisal, whichever is the lesser.
The plaintiff has provided figures which indicate that if the property appraisal is $2.9 million, then the loan would be for only $2.024 million (being 69.8% of that appraisal). If the $270,000 is added to that amount, the available funds come to just under $2.3 million, well below the amount needed to repay the plaintiff. Unless the refinancing valuation comes in higher than $3.4 million, the refinancing will not be enough to repay the plaintiffs.
None of the evidence before me suggests that the valuation is likely to come in as high as $3.4 million.
In that regard, Mr Kitas produced an email which he described as “...valuation correspondence and supporting valuation documentation obtained from Knight Frank in respect of the property". Mr Kitas said that the documentation confirmed that the property was estimated to have a value of approximately $3.6 million. I am unable to draw that conclusion from the email. The email does no more than record that somebody, perhaps a person called Igor Kotevski, said that the property is worth $3.6 million. The email is part of a chain, and the Court has not been provided with the whole chain. However, the document indicates that a valuation was sought from Knight Frank but has not yet been obtained because the “parties are wanting to get an independent formal valuation done before proceeding with contract exchange to confirm fair price.” Far from providing a basis to conclude that the property is worth $3.6 million, this email suggests that Mr Kitas’ purchase (a matter to which I am about to turn) may not proceed if the valuation comes in at substantially less than $3.6 million.
This evidence has led to a shift in the defendants’ position. They now seek to proceed on the basis of one of the other limbs or potential grounds for a stay identified by Johnson J in GE Personal Finance Pty Ltd v Smith [2006] NSWSC 889, that is, a prospective sale of the property.
Mr Kitas has given evidence that he is presently proposing to purchase the property for approximately $3.7 million. Mr Kitas describes the proposed acquisition as:
26 … genuine, commercially advanced and presently progressing between the parties with a view to finalising the transaction as expeditiously as possible
There are several difficulties with this evidence:
Mr Kitas’ evidence has come at the last minute today. It was not raised before the Court last week, and the plaintiff has had no opportunity to test it.
Mr Kitas’ affidavit clearly suggests that he does not regard himself as having yet bound himself to purchase the property. Mr Kitas says in this regard:
27 The front page of the Contract for Sale has already been prepared, and the parties are presently progressing the balance of the contractual and conveyancing documentation necessary to facilitate completion of the transaction. Annexed hereto marked "C" is a copy of the front page of the contract.
28 It is my present intention to proceed with the acquisition of the Property subject only to completion of the formal contractual, finance and settlement processes ordinarily associated with a transaction of this nature.
The front page of the contract at annexure C indicates that the contract has been signed, and the defendants' counsel has said from the Bar table that exchange had taken place in relation to the contract. It is difficult to understand this in light of the email between Mr Kotevski and Knight Frank, which I have referred to above, which appears to contemplate that exchange will take place after a valuation.
I can only infer that what has been exchanged and executed is a contract that, at its highest, is conditional and subject to significant qualifications in Mr Kitas' favour.
Neither Mr Kitas nor the defendants explain why the proposed deposit is only $30,000 rather than 10% of the purchase price.
These matters give reason to doubt the likelihood that a binding, unconditional contract for sale will in fact be executed between the parties in the near future.
Second and more significantly, the proposed contract requires vacant possession. I was told from the bar table that, notwithstanding what appears on the face of the contract, what is proposed is a sale with a lease in place. I have no evidence of that and especially in the circumstances of this case I am unable to place weight on it.
This leaves the Court in the position where, on the evidence, the only likely way in which the defendants will be able to repay the plaintiff is if the sale proceeds with Mr Kitas, and that sale appears to require vacant possession. This reduces the weight I can place on the evidence of hardship, especially to other members of the family, given that there appears to be a prospect that the defendants will have to move out of the property in any event. I recognise that there will be a disruption to the family and I place full weight upon it.
Nevertheless, when I take all of the evidence above into account, I am not satisfied that there is a proper basis for the stay to continue. The basis on which the stay was granted, being the payment of $270,000 by a particular time, has not been met. The prospect of refinancing is, at best, speculative in light of the evidence as to the valuation and the proposed lender's loan to value ratio, and the prospect of a sale is, at best, unreliable. I am also conscious of Johnson J's observation in GE Personal Finance at [18], that the lifting of the stay does not prevent the defendants from repaying the loan in full at any point.
In those circumstances, I vacate orders 1 to 6 of the orders made on 21 May 2026.
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On the evidence before me on 21 May 2026, $270,000 was available pursuant to a letter of offer from a financier willing to lend against the security of a number of motor vehicles. In revising these reasons, I have added clarification in circumstances where reasons were not delivered for the orders made on 21 May 2026, those earlier orders having been by consent.
TNAL507 Pty Ltd
Saliba