Supreme Court New South Wales Medium Neutral Citation: Secure Funding Pty Ltd v Earley [2013] NSWSC 1368 Hearing dates: 18 September 2013 Decision date: 18 September 2013 Jurisdiction: Common Law Before: Davies J Decision: 1. I stay execution of the writ until 5.00pm 18 October 2013. 2. The stay is conditional on payments of $600 being made by the Defendants to the Plaintiff on each of 23 September, 30 September, 7 October and 14 October 2013. Catchwords: REAL PROPERTY - possession of land - application to stay writ of possession - second application - application made the day before eviction scheduled - no explanation for delay - hardship - defendants' son disabled and in need of special care and accommodation - inability to find alternative accommodation - failure to pay any money since judgment despite means to do so - no evidence that accommodation will become available - short stay granted Cases Cited: GE Personal Finance Pty Limited v Smith [2006] NSWSC 889 Category: Interlocutory applications Parties: Secure Funding Pty Ltd (Plaintiff) Paul Francis Earley (First Defendant) Cheryl Ann Earley (Second Defendant) Representation: Counsel: N J Lennings (Plaintiff) D Angelkov (Defendant) Solicitors: Norton Rose Australia (Plaintiff) Kent Lawyers (First & Second Defendants) File Number(s): 2013/43267 Judgment 1The Defendants apply, by Notice of Motion, to stay a writ of execution which is due to be executed tomorrow. There has not been any satisfactory explanation as to why it is left until the afternoon of the day before the eviction to make this application. 2The loan and its defaults have a long history. It was advanced in August 2006 and fell into arrears for the first time in January 2007. The present proceedings were commenced on 12 February 2013. That followed a number of rearrangements and complaints to the Credit Ombudsman Service. The default that was relied on in the statement of claim was a failure to pay an instalment in April 2011. 3Judgment was entered on 13 June this year after Johnson J struck out the Defendant's defence. At that time Johnson J stayed the execution of any writ of possession obtained by the Plaintiff so that it was not to be executed before 19 July 2013. The Defendant had at the time asked for a longer period in which he could seek to refinance the debt. 4The present application relies on an affidavit by the first Defendant sworn on 18 September 2013. The thrust of that affidavit is that the son of the Defendants, Matthew, suffers from spina bifida and is wheelchair bound. As a result of that, he requires special purpose-built or modified accommodation. The house the subject of these proceedings has been so modified by Mr Earley. The evidence describes in detail the ideal accommodation that Matthew needs. 5Mr Earley, in his affidavit, says in paragraph 22, "In light of the fact that it was almost inevitable that we would be evicted", he and his wife tried to find alternative accommodation for the family. That statement is made in the context of a complaint to the Credit Ombudsman Service and Mr Earley says earlier in his affidavit that he lodged a complaint with that service, subsequent to the appearance before Johnson J. I infer, therefore, that Mr and Mrs Earley only came to the view that it was inevitable they would be evicted some time after May 2013. That is borne out by paragraph 24 of the affidavit where he says that it was in about May 2013 that he and his wife contacted two real estate agents in Old Bar to assist to find suitable rental accommodation. 6After the complaint was made to the Credit Ombudsman Service, a further stay was granted by the registrar until October. On 8 August the Credit Ombudsman Service advised that they could not investigate the complaint. That led to the Plaintiff moving the Court to lift the stay on the execution. On 15 August the registrar made orders which lifted the stay on the execution and at that time noted the eviction date as 19 September. As I have said, there is no explanation for why an earlier application was not made when the Defendants were aware, from 15 August, that they were to be evicted on 19 September. 7The application is put on the basis of Matthew's needs and the desire to find suitable accommodation that will accommodate those needs. In that respect, a stay is asked for until 20 December this year. I note that the last time any money was paid by the Defendants to the Plaintiff was 27 June this year. It was suggested by Mr Angelkov for the Defendants that it was because judgment had been earlier entered that no further payments were made. However, the failure to make payments when a stay is sought is a discretionary matter to be taken into account with other considerations: GE Personal Finance Pty Limited v Smith [2006] NSWSC 889 at [24]. 8The matter has perhaps more significance because the Defendants have filed evidence of their financial circumstances which shows that, on Mrs Earley's income alone, there was ample money out of which payments could have been continued to the present time. 9It does not seem to me, on the basis of the material that is before me, that there is any likelihood, if a stay of three months is given, that there will be any change in the position as far as finding accommodation that is considered suitable for Matthew's needs. The long history of this matter rather indicates that the Defendants have put their heads in the sand about the matter and, notwithstanding that Johnson J informed Mr Earley in May that the end game had arrived and that the two months stay that he provided was really his last chance, very little has been done to take into account the inevitability of eviction. 10The Plaintiff opposes any further stay and points to the opportunities the Defendants have been given and generally to the long history of the matter. 11I must have regard, however - despite the lack of any merit on the part of the Defendants to justify a stay - to the fact they have a disabled son. It does not seem to me appropriate, despite their very late application and the lack of an explanation for it, that he should be put out onto the street tomorrow, given his disabilities. I think that the only fair course to do justice between the parties is to grant an extension to 18 October to enable the Defendants to take whatever action is needed to find other accommodation for the family. 12It seems to me that this is beyond the last chance that the Defendants ought to have and that any further application for a stay would be unlikely to be successful. In saying that, I do not seek to bind any further judge who might have to deal with such a matter, but the evidence certainly satisfies me that this matter must be brought to a head once and for all. The equity in the land has long gone according to the evidence, and every day that the Plaintiff is now kept out of its money the Plaintiff is suffering a loss which it may never recover from the Defendants. 13Accordingly, I will further stay the writ of execution until 5pm on Friday, 18 October 2013. 14The Plaintiff asks that some costs be payable forthwith in respect of this application. I think the better course is that it should be made a condition of the stay that the Defendants pay the sum of $600 per week, the first such amount to be payable on 23 September and thereafter on 30 September, 7 October and 14 October. 15I am satisfied from the financial evidence that has been put forward by the Defendants themselves, that the Defendants have the capacity to do that. I note Mrs Earley's annual income is said to be $125,000 and that from that there are annual savings of $23,000. I note in the list of expenses and savings, two matters suggest capacity to pay: "cash reserves" of $5,000.50 and a "savings investment account" of $6,000.60. 16That financial evidence concerning Mrs Earley does not take account of the additional income that is received by way of a pension for Matthew and from any income that Mr Earley earns. It will therefore be a condition of the stay that $600 per week is paid on the dates I have specified. ********** 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. Decision last updated: 20 September 2013