ARNOYA HOLDINGS PTY LIMITED v METWAY LEASING LIMITED SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL PRIESTLEY JA 18 September 1995 [1995] NSWCA 22 Priestley JA. This is an application for a stay of a judgment which the second mortgagee obtained earlier this year against three parties apparently, two of whom were Mr and Mrs Campbell. One consequence of the orders made by the Court in the earlier judgment is that the judgment creditor has been able to issue a writ of possession which when executed will give possession to the judgment creditor, the second mortgagee, of the house in which Mr and Mrs Campbell are living. Mentioned in various places in papers that I have seen is the fact that Mrs Campbell is ill and also that Mr Campbell has had periods of ill health in the course of this litigation. As frequently happens in these cases the people living in the house are very anxious not to be turned out of their home. That led to an application for a stay of execution being made to Mr Justice Sheller in July 1995. He gave judgment on 17 July. In the course of his reasons he set out the very adverse financial position of Mr and Mrs Campbell at the present time. He also cameto the conclusion after examining the grounds of appeal which had been filed against the judgment of Mr Justice Barr that he did not regard their appeal as having any real chance of success. He took into account other matters proper to consider in the course of exercising discretion whether or not to grant a stay of execution and refused to grant a stay. Since then negotiations have been going on between Mr and Mrs Campbell and the second mortgagee. Some of the details of those negotiations have been put before me and it appears that what has been going on is an attempt to reach some practical solution to the predicament in which Mr and Mrs Campbell find themselves. The parties have not been able to agree. The second mortgagee has taken further steps under the orders of the Court so that the position has now been reached that the Sheriff is either now or very shortly will be in a position to take possession of the premises. The second mortgagee has told me through its counsel today that matters have reached the stage where instructions are being given to the Sheriff to take possession. There is now no legal reason why he should not take possession. Mr and Mrs Campbell have therefore made the further application for a stay which is now before me. Mr Campbell did his best to put the position of himself and his wife in support of the stay before me this morning. I indicated that I did not think on what he had said that there was any ground for granting a stay. He asked that I should refrain from deciding the matter until an opportunity had been given for Mr Glissan of Queen's Counsel to put submissions on his behalf. I was told there was a chance but by no means a guarantee that Mr Glissan would be available this afternoon. I stood the matter over to 1.45 when Mr Gye appeared on behalf of Mr and Mrs Campbell and explained that it had notbeen possible for Mr Glissan to get away from other proceedings in which he is appearing at the moment. 2 UNREPORTED JUDGMENTS Mr Gye then went over the matters that had been briefly touched on this morning when Mr Campbell was putting his submissions to the Court. A number of affidavits were read. A note of those has been kept. Some objections to evidence were made but in the end I allowed all the material in the affidavits to be read with the exception of a few paragraphs which were not pressed by the relevant party. It was recognised both by Mr Campbell in his written submissions and Mr Gye that where a second stay is being sought on a judgment of which a stay has previously been sought, where that earlier request was refused and full reasons given for the refusal, the Court would need to be persuaded that there had been some change in circumstances before it would again consider granting a stay. The two changes in circumstances relied on were firstly that there was evidence that the second mortgagee did not now want to evict Mr and Mrs Campbell and secondly that an offer had been made of payment to the second mortgagee in circumstances and upon conditions which would warrant the Court granting a stay notwithstanding that the offer had not been accepted. As to the first matter the evidence relied on by the Campbells was that Miss Lampe, a journalist employed by the Sydney Morning Herald, had spoken to an executive in the group of companies which contains the second mortgagee and an executive who would be expected to have authority to say what he was saying, and he had told her that Campbell's matter was still trying to be settled, negotiations were taking place and 'we do not intend to proceed with the eviction'. That statement was made, according to Miss Lampe's affidavit, on 14 September, last Thursday. In an affidavit of Mr Campbell sworn today hemortgagee staying its hand under the mortgage and judgment while certain things were done in relation to valuation and sale of the mortgaged house, meanwhile leaving Mr and Mrs Campbell in occupation of the house. That offer has not been accepted by the second mortgagee. There is no legal obligation upon the second mortgagee to accept it. The second mortgagee is as the law stands entitled to take whatever means are permitted pursuant to its judgment to get the benefits of the Court's judgment as to the amount owing to the mortgagee by the Campbells. As part of that, both because of the judgment and the writ of possession that has been issued by the Court, the second mortgagee has a legal entitlement to obtain vacant possession of the premises with a view to exercising the power of sale under the mortgage. Regrettable though it is from the point of view of Mr and Mrs Campbell, their offer does not in my opinion afford a ground of stay or represent a change in circumstance which I should take into account in considering whether I should come to a different conclusion from that to which Mr Justice Sheller came in his reasons of 15 July last. When the situation is looked at in broad terms, what has happened is that the second mortgagee has lent money on the security of the home of Mr and Mrs Campbell and the Court has regularly pronounced judgment on the amount that has become owing by Mr and Mrs Campbell to the second mortgagee. Unfortunately, for Mr and Mrs Campbell they are not in a position to meet the judgment and the entitlement of the lender of the money to exercise the rights to which it had under the mortgage has been said by the Court to have come into being. URJARNOYA HOLDINGS PTY LIMITED v METWAY LEASING LIMITED (Priestley JA) 3 Considerable time has passed since the proceedings were begun by the second mortgagee. The position has now been reached where I can see noother outcome but that the application for the stay must be dismissed. I dismiss the application with costs. Orders accordingly.