PYRLAKIS v PERPETUAL TRUSTEE COMPANY LTD (ACN 000 001 007) [1993] NSWCA 219

PYRLAKIS v PERPETUAL TRUSTEE COMPANY LTD (ACN 000 001 007)

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

HANDLEY JA 3 May 1993

[1993] NSWCA 219

Handley JA. In this matter Mr Gye for the claimant has sought a stay of execution pending the hearing of the appeal. The appellants are the registered proprietors of the subject property and they raised money on mortgage for the benefit of Becker Developments Pty Ltd which is no longer trading and probably is in liquidation. Default has been made in payment of amounts due under the mortgage and proceedings to recover possession of the property were heard by Allen J in the Common Law Division. His Honour found in favour of the plaintiff, Perpetual Trustee Company Ltd, and entered judgment for possession and made other orders.

Mr and Mrs Pyrlakis have appealed and seek a stay of execution on the order for possession pending the hearing of the appeal. The position, on the affidavit of Vacilius Pyrlakis is that the debt under the security is approximately $300,000 and she has deposed to a belief that the market value of the property at the present time is approximately $240,000. She said that the amount secured exceeds the value of the property but no prejudice would be suffered by Perpetual Trustee Company if the judgment for possession is stayed.

However, in my view this overlooks the fact that the debt will increase and the likely deficit, if the appeal ultimately fails, will be greater than it is at present.

An affidavit filed this morning by Robert Andrew Smith states that no payments under the mortgage have been received since November 1991. There is no evidence as to the rate of interest under the mortgage but it is clear that a stay would expose the respondent to the risk of fluctuations in the market value of the security and in addition the debt would continue to increase and the likely deficit would continue to grow.