MINJAR HOLDINGS PTY LTD v DR FULLERTON AND CO LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY. CLARKE and MEAGHER JJA 24 May 1990, 24 May 1990 [1990] NSWCA 126 Appeal from Common Law Division — Summons for possession by mortgagee seeking possession of mortgaged property — Judge held puisne mortgagee entitled to order under s60 of Real Property Act 1900 — On appeal, appeal not pursued — Appeal dismissed — Application for stay of order for possession to allow for possible repayment of mortgage debt — Limited stay granted — No question of principle. ORDERS 1. Appeal dismissed with costs; 2. Upon the motion now before the Court, execution of the writ of possession already issued be stayed until and including Tuesday, 12 June 1990; and 3. Appellant Minjar Holdings Pty Limited pay the costs of the motion. Mahoney JA This is an appeal from Lusher AJ. His Honour heard an application for possession of premises the subject of a mortgage given by the appellant, Minjar Holdings Pty Ltd, to DR Fullerton and Co Pty Ltd. His Honour heard the application on 23 February 1990 and gave judgment on 27 February 1990. By his judgment his Honour ordered that possession be given to the plaintiff and his Honour gave judgment in the sum of $2,693,349.70 as being money due and owing in accordance with the mortgage. A stay of execution of the order for possession was granted. The court has been informed that a judge of this Court, Handley JA, granted a further stay of execution of the judgment until the disposal of the appeal or further order; the Court will act upon that basis. The only ground of opposition to the order for possession taken before his Honour was, as his Honour said, that the claimant plaintiff, DR Fullerton and Co Pty Ltd, being puisne mortgagee of the premises, was not entitled to an order for possession under s60 of the Real Property Act 1900. His Honour held against that defence. The only matter that has been raised on appeal is that his Honour was wrong in so doing. No other point has been raised. I do not mean, by saying that, that I think some other point should have been raised but I record that is the only issue that has been before the Court of Appeal. When the matter came before the Court this morning, Mr Roulstone appeared on instructions of Mr Cofini, solicitor for the appellant, to indicate to the Court that the appellant desired to, as I understand what he said, withdraw the appeal and he accepts, as I think he must, that in the circumstances the appeal is to be dismissed. For myself I am content to say that the judgment of the judge below was correct upon the only point that is here in question. However, it is proper to record also that Mr Cofini courteously informed the Court, prior to the hearing this morning, that the appeal would not be proceeding in the ordinary way. When Mr Roulstone indicated his client's attitude to the appeal, he obtained the Court's acquiescence in his filing instanta a notice of motion for orders as follows: 2 UNREPORTED JUDGMENTS "That leave be granted that the motion be returnable instanta. That issue of a writ for possession not issue prior to 19 July 1990. Alternatively, if any writ issued it be not enforceable prior to 19 July 1990. Alternatively, that any writ issued lie in the office of the Supreme Court until 19 July 1990. And such further orders as the Court deemed fit." (at page) As Ihave said, the Court had been informed and assumes that the writ has been issued and the execution of it has been stayed as I have indicated. The substance of the application was that the writ of possession not be executed until 19 July 1990. The reason for selecting that date appears to be, and I state the matter broadly, that there is a transaction for sale of other properties apt to bring in moneys at or about that time and those moneys, if necessary, will be available to meet the obligations of the appellant to the respondent under the instant mortgage. (at page) The fact is, and this emerged in the course of the hearing of the motion, that it is contended on behalf of the appellant that an arrangement has been made with another company for the obtaining of money on mortgage and it is said that these arrangements will come to a settlement so the moneys will be available in the course of the next few days. The money will be so available if what is said in the evidence which has been put before the Court this morning proves to be accurate. Ido not mean by that that there is a mis-statement by any deponent. But what has been said was meant to indicate that settlement will take place in a short time. The history of this matter raises doubts as to whether the expectations of the deponents will be fulfilled. In these circumstances it was put to Mr Roulstone that if a stay was to be continued it would not be appropriate to continue it beyond the day upon which, as it has been put, this particular transaction is expected to be, and should be, settled. He indicated, in my opinion correctly, that on the evidence he had no answer to that except to say that the application for a longer stay, until 19 July 1990 or thereabouts, was made "by way of precaution". The Court has had regard to the history of the matter as set forth in the material before it. It is no reflection upon any party present to say there may be a healthy scepticism, or at least suspicion, as to whether the transaction will be settled within the time the parties hope or expect it to be settled. In the circumstances, I do not feel that a stay of the length sought should be granted. It does not appear to be necessary and if what is said is to be accepted as reasonably accurate I do not see any reason why the respondent should be further delayed in this matter. Ihave not attempted to detail all of the evidence which appears in the affidavit because this motion, having been brought under the circumstances that it has, has been dealt with in a more contained fashion than might otherwise have been the case. I am of the opinion that the execution of the writ of possession should be stayed until and including Tuesday 12 June 1990. The orders that I would therefore propose are: That the appeal be dismissed with costs; That, upon the motion now before the Court, the order be that the execution of the writ of possession already issued be stayed until and including Tuesday, 12 June 1990; and That the appellant Minjar Holdings Pty Ltd pay the costs of this motion. Clarke JA I agree. URJ MINJAR HOLDINGS PTY LTD v DR FULLERTON AND CO LTD (Meagher JA) 3 Meagher JA I agree. 1. Appeal dismissed with costs; 2. Upon the motion now before the court, execution of the writ of 5 posession already issued be stayed until and including Tuesday, 12 June 1990; and 3. Appellant Minjar Holdings Pty Ltd pay the costs of the motion.