Max Swalding Earthmoving Pty Ltd v Stellason [2013] NSWSC 1789

Supreme Court New South Wales

Medium Neutral Citation: Max Swalding Earthmoving Pty Ltd v Stellason [2013] NSWSC 1789 Hearing dates: 3 December 2013 Decision date: 03 December 2013 Jurisdiction: Common Law Before: Davies J Decision: The application for a stay of the execution of the writs of possession is refused. Catchwords: REAL PROPERTY - possession of land - mortgages - judgment for possession - stay of execution sought - application brought one hour before execution due - no explanation for delay in making application - Defendant contracts to sell after orders for possession made - no consent to sale by mortgagee - settlement of contract will not repay the whole debt - stay refused Category: Interlocutory applications Parties: Max Swalding Earthmoving Pty Ltd (Plaintiff) Deborah Ann Stellason (Defendant) Representation: Counsel: No appearance (Plaintiff) P Raupach (Defendant) Solicitors: Astills Lawyers (Plaintiff) Russo & Partners (Defendant) File Number(s): 2013/171787

Judgment 1These proceedings came before me on 13 September 2013 for early judicial directions. The proceedings had commenced by the filing of a Statement of Claim on 4 June 2013, in which possession was sought of two properties; unit 304/176 Glenmore Road, Paddington, and unit 6, 251 Darlinghurst Road, Darlinghurst. Possession was claimed on the basis of a default under a mortgage entered into on 19 October 2012. The loan secured by the mortgage was to be repaid by 19 April 2013. It was not repaid on that date. 2The Defendant filed a defence on 18 July agreeing that a mortgage debt was owed to the Defendant (it should have said Plaintiff) in the proceedings, but the defence went on to say that the debt was yet to be quantified. The defence said that on 10 March the Defendant had instructed a Mr George Demetriou to refinance her properties. Paragraph 6 then said: I have been informed by Mr Demetriou that the refinance has been approved as the valuations of the three properties have taken place, and subject to receiving the completed taxation returns, loan documentation will be issued by Westpac Bank. 3The reference to three properties was not made clear at that time, but it is now apparent that it is a reference to a property in Tasmania. 4When the proceedings came before me on 13 September Mr D Allen of counsel appeared for the Defendant. He said to me that his client did not oppose orders 1, 2 and 5 sought by the Plaintiff in a notice of motion for summary judgment filed 2 August 2013. Orders 1, 2 and 5 were orders giving possession of each of the Paddington and Darlinghurst properties, and an order that the Defendant should pay the Plaintiff's costs. 5Mr Allen asked for a period of 28 days before any writs to enforce the judgment of the court could be executed. The basis for that was, despite what the Defendant said in her defence of July, that it was expected that refinancing would be unconditionally approved within that 28 day period. In the face of opposition from the Plaintiff's counsel I granted a 28 day period before the writs could be issued. Judgment was entered for possession for both properties, and for an order that the Defendant pay the Plaintiff's costs. Leave was given to the Plaintiff to issue writs of execution but I stipulated that they were not to be executed before 12 October 2013. 6The Defendant applies ex parte this morning because the sheriff has arrived to execute the writs. I am told that he is waiting at this moment at the Paddington property. 7The Plaintiff is not here because the Defendant says that she has not been successful in endeavouring to contact the company, its principal or solicitors. 8In paragraph 17 of the affidavit that she has sworn in support of this application she said she received the Notice to Vacate issued by the sheriff for the Paddington property from the tenant. She did not say when this had been received by her. I have been informed by Mr Raupach, who appears for her, that she received that notice from the tenant approximately two weeks ago. There is no explanation provided for why this present application is made on the morning that the sheriff is seeking to execute on the judgments, indeed, in the hour before execution is scheduled. 9The basis for the application is this: There is evidence that a contract for sale of the Darlinghurst property was exchanged on 21 November 2013. The contract price is $525,000 and, under the terms of the contract, settlement is to take place within 42 days after the contract date. I am told that it is supposed to settle, therefore, on 2 January 2014. 10The Defendant acknowledges that as at 12 July this year the amount said to be outstanding to the Plaintiff was $606,445.28. Settlement of the sale of the Darlinghurst property would not, therefore, amount to a complete repayment of what is owing to the Plaintiff. In any event I am informed, in answer to questions I directed to Mr Raupach, that the Defendant has not obtained the Plaintiff's consent to the sale of the Darlinghurst property. 11That contract was entered into some two months after an order for possession was made of the property, and after the time at which the Plaintiff was entitled to issue a writ of execution for the property. There is, therefore, no guarantee that the Plaintiff will agree to discharge the mortgage over the Darlinghurst property to enable settlement of that contract to take place in January. 12However, that is not the end of the Defendant's problems, because repayment of the amount outstanding additionally requires the sale or refinance of the Paddington property. 13I have been told that it is intended, after the Darlinghurst property is settled, a refinancing of the Paddington property will take place. Otherwise, I have been directed to a contract for sale which has been prepared for the Paddington property. However, I am told that that property is not at the present time on the market. At the earliest, therefore, it would seem that the Plaintiff will be repaid the debt that is owed sometime beyond January, when either a refinancing is available or a contract for sale of the Paddington property is settled. If it is the latter it seems unlikely that the Plaintiff will recover what is owing before March or April next year. 14In any event, as I have said, the Plaintiff has not consented to the present sale nor, I infer, to any intended sale of the Paddington property. I note that both properties are investment properties. 15In circumstances where what is proposed will not provide any obvious benefit to the Plaintiff, when there is no explanation for the late application, and where no consent has been obtained to the contract for sale entered into, after orders for possession were made, I do not consider it is appropriate to stay the execution of either of the writs of possession. 16The application is refused.