Supreme Court New South Wales Medium Neutral Citation: Perpetual Corporate Trust Limited v AI Group Development Pty Limited [2023] NSWSC 1509 Hearing dates: 01 December 2023 Date of orders: 01 December 2023 Decision date: 01 December 2023 Jurisdiction: Common Law Before: Lonergan J Decision: (1) Pursuant to ss 67 and 135 of the Civil Procedure Act 2005 (NSW), I stay the execution of the writ of possession obtained by the plaintiff on the land comprised in Certificate of Title Folio Identifier [REDACTED] being the land situated at and known as [REDACTED], Rydalmere NSW 2116 until 5.00pm on 29 January 2024. (2) The second and third defendants are to file and serve an affidavit updating the position regarding the progress of the sale of the property on or before 22 January 2024. (3) I list the matter for further consideration of the continuance of the stay at 10:00am on 29 January 2024 before the duty judge. Catchwords: MORTGAGES – claim by mortgagee for possession of land following default by mortgagor – default judgment entered and writ of possession issued – application for stay of execution of writ – hardship and sale of property under way – stay granted until January 2024 to allow sale plans to progress Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: GE Personal Finance Pty Ltd v Smith [2006] NSWSC 889 Category: Procedural rulings Parties: Perpetual Corporate Trust Limited (Plaintiff) AI Group Development Pty Limited (First Defendant) Rostam Farjudi (Second Defendant) Jamileh Farjudi (Third Defendant) Vesta Farjudi (Fourth Defendant) Representation: Counsel: L James (Second and Third Defendants) Solicitors: Thomson Geer (Plaintiff) Allied Lawyers (Second and Third Defendants) File Number(s): 2023/00036937 Publication restriction: Nil REVISED EX-TEMPORE JUDGMENT 1. By amended notice of motion filed on 21 November 2023, the second and third defendants, Rostam Farjudi, an 80 year old man, and Jamileh Farjudi, a 75 year old woman, seek an order for stay of the execution of a writ of possession that has been obtained by the plaintiff company. 2. The property the subject of the writ of possession is at [REDACTED], Rydalmere. 3. The affidavit material served in support of the notice of motion informs me that this is the home of the second and third defendants and has been for many years. 4. The second defendant is according to the affidavit material, in poor health. The third defendant also has had some health problems this year. She performs the role of caregiver to four grandchildren who live at a separate address in Sydney. 5. The property in question is also the subject of two residential tenancy agreements between the third defendant and persons occupying the ground level of the property and another person living in a granny flat on the property. 6. There has been no previous application for stay of the execution of the writ. 7. By way of background, a statement of claim was filed by the plaintiff on 30 January 2023 pleading that the first defendant obtained a loan from it in July 2020, and the second and third defendants mortgaged the subject property as security for the loan and engaged in an agreement with the plaintiff by which they guaranteed to the plaintiff the due and punctual payment of the moneys due under the loan. 8. The effect of this arrangement is that if there is default under the loan, the plaintiff is entitled to take possession of the property and obtain judgment against the defendants for the amount owed. 9. The fourth defendant is the daughter of the second and third defendant, and to the extent I understand it, the first defendant company has some association with the former husband of the fourth defendant. 10. For the purposes of this application, there is no need to go into the detail that appears to have underpinned this particular arrangement. Suffice to say that the bases for the application before the Court today is, first, that there has been demonstrated on the affidavit material a process for sale of the property set in motion, and second, hardship, given the age and circumstances of the second and third defendant. 11. I was assisted by helpful written submissions by counsel for the applicants. Four affidavits were read in support of a stay. A lengthy affidavit of Ms Jamileh Farjudi sworn 19 November 2023 annexed correspondence and material regarding the background to the circumstances in which she finds herself, but also, importantly, mentioned that there was, at least at that stage, contact made with an agent, an agency agreement signed and a valuation of the subject property secured, at least informally. 12. Ms Farjudi also deposed to the fact that she had been served with a statement of claim earlier this year and at that point, the fourth defendant also lived at the premises with her children, and Ms Farjudi prevailed upon her for assistance for explaining to her, and assisting her, with what the statement of claim meant, and what she should do about it. 13. The affidavit sets out some steps taken by the third defendant which were hampered by her having difficulty with English. The affidavit also deposed to health problems Ms Farjudi had in April and July, and a short trip overseas due to a family emergency that Ms Farjudi had to undertake. Also mentioned in the affidavit is a willingness to sell the property as soon as possible, and to undertake, irrevocably, that a sum reflective of the sum owed will be dealt with in a certain fashion to protect it for payment of the judgment debt when the sale is secured. 14. An affidavit of Mr Gribilas, solicitor, also sworn 21 November 2023, deposed to correspondence regarding the preparation of the notice of motion. 15. The third affidavit read was sworn by Rostam Farjudi, the second defendant, in which he agrees with the undertakings provided by his wife, and gives similar undertakings as to the intention to sell the property, and the need for time to move out of the property and make arrangements for alternative accommodation given his own and his wife's health, age and medical conditions which means that they need assistance for those processes to occur. 16. The fourth affidavit read was sworn by Mr Gribilas on 30 November 2023. This updated the position regarding the sale of the property, appending a letter from an agent in Ermington who confirmed in an email forwarded on 30 November 2023, that an open house occurred on 25 November 2023, that nine potential buyers attended and inspected, that one contract was issued on that day and three further contracts since, and confirming at least one offer to purchase was made, although for a figure significantly under the valuation figure of $2 million to $2.1 million. The email also stated what is planned in terms of the ongoing sale campaign for the end of this year and into early next year. 17. As set out in the outline of submissions, the second and third defendants seek a short period of time from the Court to allow for the sale of the property in a manner designed to avoid a mortgagee sale, and to thereby maximise the value realisable from the sale. Steps to sell the property have been evidenced and given those matters, this Court should proceed on the basis that this course of action will continue. 18. This Court has a discretion whether to stay the execution of a writ of possession of this nature. It is a power which is sought to be exercised quite often, and in a variety of circumstances. As articulated by Johnson J in GE Personal Finance Pty Ltd v Smith [2006] NSWSC 889, at [9]: "There could be no prescription of the circumstances in which this important discretionary power ought to be exercised." 1. Johnson J set out the type of matters that are often considered in exercising a discretion of this type in a particular case. Those categories of consideration include both proposed sale and hardship grounds. 2. Both those factors apply here and are well-supported by the nature and content and quality of the affidavit evidence tendered. 3. I am of the view that a short stay of the execution of the writ of possession ought to be given. I note that the legal representative for the plaintiff, in a cooperative but reasonably firm fashion, did not quibble with the affidavit evidence, but noted the plaintiff's view that any timeframe provided by the Court should be short and carefully supervised by the Court. 4. I agree with that, and do not interpret the approach taken by counsel for the second or third defendants to suggest anything other than that close supervision of the process of the sale should be provided by the Court. 5. Accordingly, I am prepared to grant the order sought in the notice of motion, with some additional requirements that further affidavit evidence of the progress of the sale be provided, and that the matter come back before the duty judge on 29 January 2024 for further assessment as to whether the stay of the execution of the writ of possession should continue. Orders 1. I make the following orders: 1. Pursuant to ss 67 and 135 of the Civil Procedure Act 2005 (NSW), I stay the execution of the writ of possession obtained by the plaintiff on the land comprised in Certificate of Title Folio Identifier [REDACTED] being the land situated at and known as [REDACTED], Rydalmere NSW 2116 until 5.00pm on 29 January 2024. 2. The second and third defendants are to file and serve an affidavit updating the position regarding the progress of the sale of the property on or before 22 January 2024. 3. I list the matter for further consideration of the continuance of the stay at 10:00am on 29 January 2024 before the duty judge. 1. I should note that the plaintiff also sought liberty to apply to the Sheriff for a date for execution of the writ of possession. I am of the view that such an order would be premature in circumstances where I have considered it appropriate to grant the stay sought. That position can be revisited on 29 January 2024, if considered appropriate, but in the normal course, liberty to apply to the Sheriff would only be granted by the Court in circumstances where the Court decided that the writ of possession should not be stayed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 December 2023