FEDERAL COURT OF AUSTRALIA

Nugawela v Commonwealth Bank of Australia [2018] FCA 960

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    There be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    At approximately 9.36am this morning Ms Karen Nugawela lodged electronically an application for urgent relief by way of an injunction in advance of proceedings to restrain the enforcement of 'warrants of possession' over two properties. I will refer to the properties as the Coolibah Drive Property and the Hazelbury Street Property or collectively as the Properties.

2    The registered proprietor of the Properties is Dr Patrick Nugawela. Dr Nugawela is bankrupt.

3    The proposed parties to the action that Ms Nugawela anticipates bringing are the Commonwealth Bank of Australia (Bank) and Mr Gregory Dudley, the trustee of Dr Nugawela's estate.

4    In support of her application, Ms Nugawela filed an affidavit and also provided a letter of support from Dr Nugawela. For reasons to which I will return, there are various difficulties with the documents. However, the application was accepted for filing by the Court shortly after 10am today.

5    An urgent listing before me was arranged at 2.15pm today and the parties were informed. It appears that separately Ms Nugawela had already informed the Bank of the application and served it with the papers following lodgement.

6    There are various defects and difficulties with the filed documents. For example:

(a)    Ms Nugawela's affidavit appears to be incomplete, as the jurat is absent and the final paragraph does not read as if it is complete;

(b)    the 'warrants of possession' that Ms Nugawela sought to suspend are not particularised or attached (although copies have since been provided by the Bank);

(c)    Ms Nugawela's affidavit refers to orders made in proceedings before Justice Allanson in the Supreme Court of Western Australia. Those orders are not attached (although a copy has since been provided by the Bank); and

(d)    in her application, Ms Nugawela states that she relies upon her affidavit filed in Supreme Court proceedings as the basis of her claim. That affidavit is not before me.

7    However, doing the best that I can, I discern that Ms Nugawela's argument is:

(a)    the Properties are owned by Dr Patrick Nugawela;

(b)    the Bank has orders for possession of the Properties;

(c)    Dr Nugawela's trustee has consented to the Bank taking possession;

(d)    Ms Nugawela claims an interest in the Properties pursuant to orders made by the Family Court (those orders are not before me);

(e)    the Supreme Court was allegedly aware of the Family Court orders when it ordered that the Bank was entitled to possession of the Properties, as they had been referred to in evidence filed by Dr Nugawela;

(f)    Ms Nugawela wishes to challenge the Bank's right to possession; and

(g)    the businesses that operate from the Properties are likely to be lost if possession is granted: whether and how Ms Nugawela has an interest in those businesses was unclear, although Dr Nugawela referred in his letter provided to the Court to Ms Nugawela having clientele of a business operating from the Properties.

8    I am also able to ascertain the following from the published reasons of the court:

(a)    Dr Nugawela was declared bankrupt on or about 21 February 2017 and a process of review and appeal was unsuccessful: see Nugawela v Deputy Commissioner of Taxation [2017] FCA 897; and

(b)    On 5 October 2017 the Supreme Court of Western Australia granted the Bank summary judgment for possession of the Properties: see Commonwealth Bank of Australia v Nugawela [2017] WASC 303 (Allanson J). In those reasons, Allanson J noted:

[13]    In his affidavit, the defendant [Dr Nugawela] asserts that he and others will suffer hardship by the loss of the two properties. One of them is his place of business. The other is occupied by his former mother-in-law, recently widowed, and her daughter.

[14]    The defendant did not dispute that he is in default on the agreements. He has said nothing to demonstrate that he has any defence to the claim, or to identify a triable issue.

…

[17]    The plaintiff has satisfied me that it has a good claim for possession of the secured property. None of the material filed by the defendant has raised a triable issue. On the material before me there is no issue or question in dispute which ought to be tried.

9    Late this morning my Associate was informed by Ms Guy who represents the Bank that:

(a)    in addition to the formal orders made by Allanson J for possession, Property Seizure and Delivery Orders (PSDO) were made in respect of each of the Properties under the Civil Judgments Enforcement Act 2004 (WA);

(b)    the PSDO with respect to the Hazelbury Street Property has been cancelled;

(c)    the PSDO with respect to the Coolibah Drive Property had been listed for eviction at 10am today and has already been executed.

10    Ms Guy also informed the Court that Dr Nugawela has applied in the Supreme Court for 'suspension orders' in the action that was determined by Allanson J, and that the hearing is listed before a Registrar of the Supreme Court on 25 June 2018.

11    Ms Nugawela did not attend the hearing before me in person, but participated by telephone. I understand from her oral submissions that the Sheriff has taken possession of the Properties today. During the hearing, Ms Nugawela indicated to me that she understood that she was seeking the same relief in this action as was in effect being sought by the suspension application to be heard by the Registrar of the Supreme Court. Whether that is a reference to relief that she intends to seek herself or a reference to relief that Dr Nugawela seeks is unclear, but in any event, if Dr Nugawela is successful in obtaining suspension orders then Ms Nugawela may potentially have the practical benefit of any such suspension order.

12    Ms Guy provided to the Court a copy of the orders of Allanson J, and the PSDOs in respect of both Properties.

13    Based on that information, there were no grounds in any event to make any order with respect to the Hazelbury Street Property, even assuming this Court had jurisdiction to do so. The PSDO has been withdrawn.

14    As to the Coolibah Drive Property, and again assuming that this Court otherwise has jurisdiction, then there is now no basis for the particular injunctive relief sought, the PSDO for the Coolibah Drive property having already been executed.

15    Accordingly, in my view the application must be dismissed on that basis. The Bank moved for dismissal of the application.

16    I do not consider the application for an injunction had any reasonable prospects of success in any event, based on the papers that were before me.

17    From the information before me it was not possible to discern the proper basis for an argument that if re-entry of the Properties under the PSDO were still pending, this Court should intervene with respect to execution commenced in accordance with orders made by the Supreme Court of Western Australia (orders apparently made where there was disclosure of Ms Nugawela's alleged claim arising out of Family Court Orders) and proceeding in accordance with the provisions of the Civil Judgments Enforcement Act.

18    The Bank did not seek costs. Accordingly, the application is dismissed with no order as to costs.

Associate:

Dated:    25 June 2018