Victorian Group No 10 Co-operative Housing Society Limited v Ramadan [2000] VSC 406

5. The evidence that has been given before me by the solicitor for the defendants, Mr Sher, and by the first defendant is to the effect that there was an agreement reached, expressly or impliedly, with the plaintiff that eviction was not going to be proceeded with subject to the conclusion of settlement under a contract of sale which had been signed and which, when concluded, would enable the entire debt owing to the plaintiff to be repaid, including all arrears, under the mortgage.

8. I am advised on the evidence that settlement should be taking place on approximately Wednesday next week or thereabouts, that advice having been conveyed today to the solicitors and to their clients by way of faxes, the fax to the solicitor apparently being conveyed to the client directly when attempts to deliver the fax to the solicitors for the plaintiff were unsuccessful.

11. In the letter that was sent today by Mr Sher he advanced a number of pressing reasons why the eviction should not take place on Monday, including, and I will quote:

"Amongst other factors, that settlement of the sale is anticipated after three clear business days. We are trying to reduce this if possible and settle on about Wednesday, Thursday next week."

"In addition we point out that one of our clients, Mrs Ramadan, is currently at the Werribee Mercy Maternity Hospital giving birth to their child, having gone into labour at 4 a.m. this morning."

17. This is today, and it has been confirmed that she gave birth this morning to her fourth child. He goes on:

"Further we are instructed that Alan Ramadan's father has a special dialysis machine pump at the subject property and requires to be at or near this machine at all times, minimum twice daily. This machine can only be dismantled and/or moved by the Royal Melbourne Hospital and special arrangements have been made to dismantle and relocate this machine on Thursday 28 September 2000. We are also instructed that he is still recovering from an arterial bypass operation he had at the Royal Melbourne Hospital on Tuesday 19 September 2000. On the basis of the above we plead with you to hold the execution of the writ in abeyance until at least the end of next week in order that the sale may settle."

21. The response to that was a fax from the solicitors for the defendant acknowledging that they had received the facsimile and saying:

"We are instructed that upon receipt of a bank cheque for $50,000 prior to 4.30 p.m., we are instructed to place the warrant of possession in this matter on hold for a period of seven days only."

25. That fax was received at ten to four. In my opinion, subject to an explanation which might be offered in due course, that has all the hallmarks of a response which was both inflammatory and entirely inappropriate in the circumstances. It is quite noticeable that no attempt whatsoever was made to respond to the issues raised in the fax of Mr Sher dealing with the questions of the length of delay required, the difficulties as to dialysis and the other matters which had been raised. In my view, the letter of itself is a clear indication of where the balance of convenience lies in this case and I am proposing to grant the application. There is a serious question to be tried and the balance of convenience is in favour of granting the injunction.

28. I make the following orders. Firstly, I will note in "Remarks" that I have heard the evidence of Mr Jack Sher, solicitor for the defendants, and of Alan Ramadan, and I have received exhibits, which will be placed on the file together with transcript of these proceedings.

31. Upon the first defendant through his counsel giving an undertaking that he will abide by any order that the court or a judge may make as to damages in this case that the court or a judge should hereafter be of the opinion that the plaintiff, Victorian Group No.10 Co-operative Housing Society Limited shall have sustained by reason of this order which the plaintiff ought to pay - and I would ask further for an undertaking insofar as any other person incurs expense as a result of this order.

34. Perhaps you should just undertake, should you not, to meet any expense which is suffered by the Sheriff in these proceedings? No, I think it should be to pay damages to any other person in the same terms.

MR AIZEN: I am instructed to give that undertaking. In any event, the Sheriff certainly charges the plaintiff and the plaintiff puts it on the running account.

HIS HONOUR: I will include it anyway. So that the first undertaking is to abide by any order that the court or a judge may make as to damages that the plaintiff, Victorian Group No.10 Co-operative Housing Society Limited, or any other person shall have sustained. The court orders:

1. That the Sheriff and Victorian Group No.10 Co-operative Housing Society Limited, being the plaintiff in action No.4922 of 2000, their servants and agents be restrained until 4.15 p.m. on Tuesday 3 October 2000 or until further order from executing warrant of possession No. SP000049780 with respect to the defendants and their property situate at 69 Tasman Crescent, Taylors Lakes.

2. Pursuant to Rule 60.04, this order may be drawn up by the defendants and be signed by a judge.

I did not say this but I should make this as the second of the further undertakings, that upon the defendants by their counsel undertaking to issue a summons returnable on 3 October 2000 at 10.30 a.m., supported by an affidavit, to be served upon the plaintiff and/or the Sheriff by 2 p.m. Wednesday 27 September 2000.

I will reserve the costs of the application before me.

I will give liberty to apply to the parties and the Sheriff.