Permanent Trustee Company Ltd v Burkitt Australia Pty Ltd [2006] NSWSC 1343

New South Wales Supreme Court

CITATION : Permanent Trustee Company Ltd v Burkitt Australia Pty Ltd [2006] NSWSC 1343

HEARING DATE(S) : 20/09/06 JURISDICTION : Equity Division Duty List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 09/20/2006

DECISION : Stay of execution of writ of possession refused.

CATCHWORDS : PROCEDURE – Stay of execution – Judgment for possession – where no risk of capital loss to plaintiff – where last minute offer of refinance – when plaintiff has shown sustained tolerance and patience in affording time and opportunity to refinance – stay refused.

Permanent Trustee Company Ltd ACN 000 000 993 (P) PARTIES : Burkitt Australia Pty Ltd ACN 057 630 458 (D1) James Burkitt (D2) Tanya Grassi (D3)

FILE NUMBER(S) : SC 13158/04

COUNSEL : Mrs Van Ravels (sol) (P/Resp) Mr A Fairbairn (sol) (D/App)

SOLICITORS : Gadens Lawyers (P/Resp) Fairbairn Lawyers (D/App)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION POSSESSION LIST

BRERETON J

Wednesday 20 September 2006

13158/04 Permanent Trustee Company Limited v Burkitt Australia Pty Limited JUDGMENT (Ex tempore) 1 HIS HONOUR: The sheriff is in the process of executing a writ for possession of a farm property at Glenquarry in the Southern Highlands, of which the first defendant is the registered proprietor.

2 The plaintiff obtained judgment for possession of the property on 5 January 2005, when a writ of possession was first issued. Notice to vacate was given on 7 February 2005, appointing a time for eviction of Thursday 10 March 2005. On 8 March 2005, the plaintiff agreed not to execute the writ, upon the defendant providing evidence of an unconditional approval of refinance by 24 March. Subsequently time to do so was extended until 10 June 2005. No refinance proceeded.