On 10 June 2014, His Honour, Justice Bellew, handed down a
decision in the Supreme Court of New South Wales in proceedings
Australia and New Zealand Banking Group Limited v Huybers &
Anor  NSWSC 720.
The case provides guidance on two issues which concern
where there has been delay on the part of a person bringing an
application for a stay on an eviction; and
where an allegation of fraud is made against a mortgagee.
Kemp Strang acted for ANZ in the case.
The proceedings were commenced by ANZ in April 2013 against Ms
Huybers, a company known as Pineview Property Holdings Pty Ltd
(Pineview) and a further company of which Ms
Huybers was the sole director. The proceedings sought possession of
two adjoining properties in Galston (Galston
Properties) as well as judgment for certain debts.
ANZ served a Notice to Occupier on the occupier of the Galston
Properties, Biagina Rubino, on 14 April 2013.
Shortly thereafter, ANZ obtained default judgment and writs of
possession were issued in July 2013. Evictions were scheduled to be
carried out at the properties on 30 August 2013.
On the eve of the evictions, Ms Rubino filed an application
seeking a stay on the execution of the writs of possession. A
temporary stay was granted until Ms Rubino's application could
During the course of Ms Rubino's application, 11 affidavits
were served on her behalf. In addition, on 8 October 2013, Ms
Rubino commenced proceedings in the Equity Division of the Supreme
Court of New South Wales against ANZ and others.
The affidavits and the statement of claim filed in the Equity
Proceedings made allegations that ANZ had participated in or had
knowledge of a fraud perpetrated against Ms Rubino.
As a result of the alleged fraud, Ms Rubino claimed that the
execution of the writs of possession should be stayed until such
time as the Equity Proceedings were finally determined.
ANZ rejected any allegation that it had taken part in any
alleged fraud perpetrated against Ms Rubino. ANZ also pointed to
the delay in Ms Rubino bringing her application in circumstances
she had become aware in September 2012 that the Galston
Properties had been transferred to Pineview; and
ANZ had served a notice to occupier in February 2013; and
notwithstanding the above, Ms Rubino did not file her
application until 29 August 2013.
Allegations of Fraud
In support of her allegation, Ms Rubino submitted that provided
that the statement of claim in the Equity Proceedings was properly
pleaded, on that basis alone, the Court should conclude that Ms
Rubino had an arguable case against ANZ that it had knowingly
assisted in the fraud allegedly committed against Ms Rubino by
This submission was rejected by His Honour who stated that
allegations contained in a statement of claim are nothing more than
that. They say nothing about the strength of a case.
Ms Rubino then made submissions that the alleged circumstances
surrounding the transfer of the Galston Properties to Pineview (in
which ANZ played no part) and ANZ's "unusual" conduct
in advancing monies to Pineview (which amounted to nothing more
than some minor administrative oversights on the part of ANZ)
amounted to ANZ participating in, or knowingly assisting, a fraud
perpetrated by Pineview against Ms Rubino.
The Court found that even if it was accepted that some aspects
of the transactions with ANZ were unusual, they were no more than
that. The matters raised by Ms Rubino failed to establish that ANZ
had participated in or had knowledge of any alleged fraud committed
by Pineview against Ms Rubino.
The Court found that the delay in bringing the application, in
the absence of any evidence which would explain the delay, was a
further factor against the making of the orders sought in Ms
Lessons for Mortgagees
The case is advantageous for mortgagees as it highlights
a mere allegation of fraud against a mortgagee is not
sufficient for an applicant to obtain a stay on the execution of
the writ of possession. The person making the allegation must also
have evidence of the actual knowledge of the fraud or participation
in a fraud by the mortgagee; and
delay by the person bringing the application for a stay on the
execution of a writ of possession may cause that application to be
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Kemp Strang has received acknowledgements for the quality of
our work in the most recent editions of Chambers & Partners,
Best Lawyers and IFLR1000.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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