New South Wales Court of Appeal CITATION: Kyabram Property & Investments Pty. Ltd. & Anor. v. Murray & Anor. [2005] NSWCA 88 HEARING DATE(S): 23 March 2005 JUDGMENT DATE: 23 March 2005 JUDGMENT OF: Hodgson JA at 1 DECISION: 1. The Notice of Motion filed on 17 February 2005 is dismissed. 2. Ordered that the appellants pay the respondents' costs of that Notice of Motion, and the basis on which those costs are to be assessed will be as determined by the Court of Appeal in a judgment which will be delivered shortly. (In the judgment, Mr. and Mrs. Murray referred to as the appellants, and to Kyabram Property Investments Pty. Limited and North Central Securities Limited as the respondents.) CATCHWORDS: PROCEDURE - Stay of execution - Judgment for possession in favour of mortgagee - Proceedings by mortgagor against third party, from which mortgagor hopes to pay out mortgage. CASES CITED: State Bank of Victoria v. Parry [1989] WAR 240 Kyabram Property & Investments Pty. Limited - 1st appellant North Central Securities Ltd. - 2nd appellant PARTIES: Wendy Jill Murray - 1st respondent Robert Omiston Murray - 2nd respondent FILE NUMBER(S): CA CA 40495/04 Mr. D. Conti SC with Mr. P. Bolster for Kyabram & North Central COUNSEL: Mr. J. Wilson SC for Murrays Kell Moore Solicitors, Albury for Kyabram & North Central SOLICITORS: McKell's Solicitors, Sydney for Murrays LOWER COURT JURISDICTION: IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40495/04 HODGSON JA Wednesday 23 March 2005 KYABRAM PROPRTY & INVESTMENTS PTY. LTD. & ANOR. V. MURRAY & ANOR. Judgment (On application for extension of stay of execution) 1 HODGSON JA: I am dealing with an application brought by a Notice of Motion filed on 17 February 2005 to extend a stay of execution of a judgment for possession in relation to the property Boala until 30 June 2005 or until further order of the Court. 2 There are two principal grounds put forward for the extension of the stay. The first is that the appellants' only source of income is income generated from Boala, and there are crops on Boala that should be harvested in April and May 2005, yielding something like $85,000.00. The appellants say that this is their only source of income and the source for any further legal costs that they may need to incur. That relates to some extent to the second matter that is put forward in support of the stay, namely that the appellants have obtained a new trial of proceedings against Mr. Duddy which, if successful, would be likely to produce a judgment sufficient to pay out the balance of the respondents' debt remaining after the sale of the other property West Garawan. 3 Mr. Wilson SC for the appellants submitted that the circumstance that a judgment debtor has a claim, which is in substance a claim for some kind of indemnity against a judgment that has been obtained, can be a reason for granting a stay, and he referred me to the case of State Bank of Victoria v. Parry [1989] WAR 240, 4 In relation to the first ground, the Court has determined that the appellants are in default under the relevant mortgage, and that the mortgagee is entitled to possession, and that amounts to a determination that the mortgagee is entitled to proceeds of crops on the property. Although the Court can stay execution of a judgment, it seems to me that it would be inappropriate to do so on the ground that the mortgagors should be given access to the proceeds of crops, where the determination of the Court is that the mortgagee is entitled to those proceeds. 5 As regards the decision in Parry, that was a case where the Court was satisfied that the judgment creditor was unlikely to be prejudiced by a stay until the determination of other proceedings, and the other proceedings in question were proceedings which were literally for a indemnity against the judgment debt. The time when the other proceedings would be determined was put at at least two and a half months. I have not detected in the judgment any other statement as to the time when resolution of other proceedings was expected. 6 In the present case, the evidence suggests that if there is no stay and the mortgagee proceeds to realise the properties, the proceeds of those properties will cover the mortgage debt, but not with any substantial margin. Interest is accruing on the mortgage debt at a substantial daily rate. It seems unlikely that there will be a resolution of the proceedings against Mr. Duddy until the latter part of this year at the earliest. It is not possible to form any judgment as to the prospects of success in those proceedings, or as to the ability of Mr. Duddy to meet any judgment, if judgment is obtained. 7 Those proceedings are not literally for an indemnity, although they are for damages arising from transactions associated with the entry into the subject mortgages; and it is possible that the damages obtained would be sufficient to cover all the losses incurred by the appellants from those transactions. 8 On the whole however, I do not think a case is made out for the granting of a stay. I am not sufficiently satisfied that the proceedings against Mr. Duddy will produce a result that would enable the mortgagees to be paid out, or that there is no likelihood of loss to the mortgagees if the judgment is stayed in effect until those proceedings are concluded. 9 For those reasons, in my opinion the present application should be dismissed. 10 The orders that I make are these: 1. The Notice of Motion filed on 17 February 2005 is dismissed. 2. I order that the appellants pay the respondents' costs of that Notice of Motion, and the basis on which those costs are to be assessed will be as determined by the Court of Appeal in a judgment which will be delivered shortly. 11 In the judgment, I have referred to Mr. and Mrs. Murray as the appellants, and to Kyabram Property Investments Pty. Limited and North Central Securities Limited as the respondents. ********** 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.