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JUDGMENT – EX TEMPORE (REVISED)

1. I have before me a notice of motion seeking stay of a writ of execution for possession of property. This is the third time the matter has come before me. I refer to reasons in TNAL507 Pty Ltd v Saliba [2026] NSWSC 647 delivered 26 May 2026 on the second occasion the matter came before me.

2. This further application was received late afternoon on 9 June 2026 in circumstances where the notice to vacate stated that the eviction time was 9am on 10 June 2026. The defendants accept that they were served with the notice to vacate on 1 June 2026.

3. The principal basis for a stay is evidence that Mr Socrates Kitas has entered into a contract for sale for the purchase of the property dated 27 May 2026 for $3,650,000.

4. When the application was received, my chambers emailed the parties including the following:

His Honour has reviewed the evidence. The matter will be listed before him at 9am tomorrow morning. The Sheriff will be informed of this notice of motion, but it is the Court’s intention to deal with it in time to allow the Sheriff to attend if the application is refused. His Honour notes the following matters which may be relevant, without prejudice to any position that may be taken by either party:

(1) the absence of an explanation for why an application was not made earlier than today, noting that the notice to vacate was served on 1 June 2026 and the contract is dated 27 May 2026;

(2) the absence of objective evidence as to Mr Kitas’ ability to pay the purchase price;

(3) the absence of evidence about whether $270,000, or any other amount, has been paid to the plaintiff since the matter was last before the Court.

5. At approximately 9.30pm, my chambers received a response as follows:

We have obtained further instructions in relation to the matters identified by His Honour.

In relation to the timing of the application, we are instructed that Mr and Mrs Saliba have experienced significant personal and family issues involving one of their children in recent weeks, which contributed to the delay in bringing the application.

In relation to Mr Kitas’ capacity to complete the purchase, we acknowledge that there is presently no objective evidence before the Court addressing his financial capacity. However, we are instructed that Mr Kitas remains ready, willing, and able to proceed with the purchase and is prepared to deposit the sum of $100,000.00 into Summer Lawyers’ trust account by Monday, 15 June 2026.

We are further instructed that no additional payments have been made to the Plaintiff since the matter was last before the Court.

6. The history of this matter includes unreliable information coming from the defendants as detailed in my earlier reasons on 26 May 2026: TNAL507 Pty Ltd v Saliba [2026] NSWSC 647 at [8].

7. While I recognise that the Court has additional evidence which it did not have on the previous occasion, the defendants’ failure to take steps earlier than yesterday afternoon means that there has been no opportunity to test this evidence. Justice Johnson recognised in GE Personal Finance Pty Ltd v Smith [2006] NSWSC 889 at [12] that a defendant ought to be in a position to explain periods of inaction.

8. There is no adequate explanation for the delay in approaching this Court. I take into account the defendant’s solicitor’s email saying that the defendants had experienced personal and family issues, but in circumstances where the defendants were represented at all times by the same law firm, being the firm who apparently acted for them on the sale contract, that does not provide a satisfactory explanation for the delay.

9. When the matter was last before me, I drew specific attention to the fact that the plaintiff was unable to test evidence from Mr Kitas because it was served at the last minute, and made it clear that the inability to test the evidence significantly impacted the weight that can be placed on the evidence.

10. Despite that, and despite the defendants being represented by the same firm at all times, the defendants did not make this application, disclose their intention to make the application or serve the evidence earlier than late yesterday shortly before 4pm. Indeed, if their evidence is to be accepted, the contract was exchanged on 27 May 2026, with the same lawyers acting on the sale as are acting for the defendants in these proceedings. The failure to inform the plaintiff immediately of this contract is unexplained, and has deprived the plaintiff of an opportunity to test the reliability of the contract. It is a significant discretionary matter operating against the grant of the stay.

11. There are other reasons to doubt the reliability of the evidence:

12. Mr Kitas says in his affidavit that he is an arm’s length purchaser, yet he appears to be purchasing the property at a price substantially higher than any recent valuation. Furthermore, while his previous evidence indicated that a valuation was being obtained, he appears now to have abandoned that without explanation. The earlier evidence about this valuation was a matter to which I drew attention in my reasons on the last occasion.

13. No explanation has been offered for why the deposit is only $100,000, being just slightly over 2.7% of the purchase price. This figure, although it appears on the first page of the contract, is inconsistent with the special condition which contemplates that 5% of the deposit will be payable immediately.

14. The contract includes cl 38.1.1, which purports to give the purchaser the right unilaterally to amend the contract prior to exchange. The plaintiff’s solicitor, in an email yesterday evening, asked the defendants’ solicitor what this clause meant but received no response to that question. I recognise that given exchange has already taken place, there does not appear to be scope for further amendment pursuant to that clause, but it remains a peculiar clause and the defendants’ solicitor’s failure to respond to the question about it means it is another unexplained matter.

15. As the plaintiff points out, no explanation has been offered for what the relationship is between the contract dated 27 May 2026 placed before me today, and the undated contract which I was told was entered into on 25 May 2026 on the last occasion: see TNAL507 Pty Ltd v Saliba [2026] NSWSC 647 at [18(3)].

16. I am told that the sale will be subject to leasing arrangements, being a commercial and a residential lease (unlike on the contract that was placed before me on the last occasion). The leases that have been provided to the Court raises real questions:

(a) The commercial lease has been in place since 17 March 2025. Mr Kitas is the guarantor of the tenant under that lease, a matter which is unexplained. The business operated from the premises appears to be the second defendant’s business. That is how the defendant’s solicitor described the business before me on the last occasion. On the commercial lease, the signature on behalf of the corporate tenant, C&A Smash Repairs Pty Ltd, appears to be the second defendant’s signature. In addition to guaranteeing the tenant’s obligations, Mr Kitas witnessed the signature of the defendants in the commercial lease. (b) In those circumstances, I am unable to accept Mr Kitas’ evidence in his affidavit that he is an arm’s length counterparty. (c) The Court has been provided with two residential leases, one in respect of a six bedroom house on the property, the tenants being five members of the Saliba family including the two defendants, and one in respect of a one bedroom granny flat, the tenants being two other members of the Saliba family. Those leases are dated 14 May 2026. I find it very odd that the leases were entered into prior to the first occasion this matter was before the Court (21 May 2026) and yet they were not put in evidence. Neither of the leases are signed by the landlords or the landlords’ agent.

12. In summary, there are a number of respects in which the evidence is unsatisfactory. Given the defendants’ failure to inform the plaintiff earlier than yesterday afternoon, there has been no proper opportunity to test the evidence. While there may be the possibility of a sale, I regard it as at best highly uncertain.

13. I am also mindful of Justice Johnson’s observation at [20] of GE Personal Finance Pty Ltd v Smith that a defendant may encounter difficulties on a stay application if the decision to sell the property is left until the last minute when the writ of possession is about to be executed.

14. I do have further evidence of hardship. I have taken that evidence into account, but, as I indicated in my earlier reasons, hardship alone will not generally justify a stay.

15. One matter on which I place particular weight is that I know the defendants have access to $270,000 by borrowing against their vehicles but have not paid this amount to the plaintiff. They have now had two more weeks in which to do so since the last occasion. They were specifically invited to address this in the email from my chambers yesterday late afternoon, and their solicitor’s response was simply to confirm that no amount had been paid. This leaves the Court in the position where the defendants are known to have access to funds which they are choosing not to deploy towards the partial repayment of their debt to the plaintiff.

16. While Mr Kitas has said he is willing to transfer the $100,000 deposit into the plaintiff’s trust account by 5pm on Monday 15 June 2026, that itself raises questions, given the evidence that Mr Kitas provided a cheque for that amount dated 27 May 2026. The evidence suggests that the cheque was issued but not banked, and no explanation has been given for why that should be so or why otherwise it should take until 15 June 2026 for the $100,000 to be paid.

17. The history of this matter includes a stay having been granted on two previous occasions. On the first occasion the defendants failed to repay the plaintiff in the time provided and proposed. On the second occasion, the defendants failed to comply with an order for payment of $270,000 to which they had consented through their counsel as the price of that second stay.

18. When I take these matters into consideration, I am not persuaded that the defendants have demonstrated a sound and sufficient basis for the grant of a stay and I dismiss the notice of motion.

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