GE Personal Finance Pty Limited v Smith [2006] NSWSC 889

Reported Decision : (2006) NSW ConvR 56-164

New South Wales Supreme Court

CITATION : GE Personal Finance Pty Limited v Smith [2006] NSWSC 889

HEARING DATE(S) : 30 August 2006

JUDGMENT DATE : 30 August 2006

JUDGMENT OF : Johnson J at 1

EX TEMPORE JUDGMENT DATE : 08/30/2006

DECISION : Stay of execution of Writ of Possession granted.

CATCHWORDS : MORTGAGES - claim by mortgagee for possession of land following default by mortgagor - default judgment entered and writ of possession issued - application for stay of execution of writ of possession - factors relevant to application for stay

Real Property Act 1900 LEGISLATION CITED : Practice Note SC CL 6 (Supreme Court Common Law Division - Possession List) Uniform Civil Procedure Rules 2005

CASES CITED : Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161 Parist Holdings Pty Limited v Perpetual Nominees Limited [2006] NSWSC 599

PARTIES : GE Personal Finance Pty Limited (Plaintiff) Johnny James Smith (Defendant)

FILE NUMBER(S) : SC 10538/06

COUNSEL : N/A

SOLICITORS : Mr M Groben, Gadens (Plaintiff) Mr J Smith (in person)

LOWER COURT DATE OF DECISION : N/A

LOWER COURT MEDIUM NEUTRAL CITATION : N/A

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

Johnson J

30 August 2006

10538/06 GE Personal Finance Pty Limited v Johnny James Smith

JUDGMENT

1 JOHNSON J: On 3 February 2006, the Plaintiff, GE Personal Finance Pty Limited, commenced proceedings against the Defendant, Johnny James Smith, seeking, inter alia, an order for possession of land at 15 Warwick Avenue, Kempsey, being the land comprised in Folio Identifier 57/262340. The Plaintiff's claim alleged default on the part of the Defendant under a mortgage entered into on 22 February 2005, and sought judgment in the sum of $177,668.76 (being the amount said to be owing as at 16 January 2006). 2 On 9 February 2006, the Statement of Claim was served on the Defendant. No Defence was filed thereafter by the Defendant. 3 On 3 April 2006, application was made by the Plaintiff for Default Judgment. By that time, the amount claimed against the Defendant had increased to $182,558.24. The affidavit in support stated that the Defendant's default was based upon his failure to make payments under the mortgage on 21 June, 21 July, 21 August and 21 September 2005 in a total sum of $5,534.22. 4 There is evidence before the Court that, since the mortgage was entered into on 22 February 2005, the Defendant has made four payments only, being the sums of $1,410.00 on 24 March 2005, $750 on 27 July 2005, $750.00 on 10 August 2005 and $750.00 on 27 January 2006. No payment has been made by the Defendant since the commencement of these proceedings on 3 February 2006. 5 Default Judgment was given on 6 April 2006. On 11 May 2006, a Writ of Possession issued.