Supreme Court New South Wales Medium Neutral Citation: Pepper Finance Corporation Pty Ltd v Mackney & Anor [2014] NSWSC 196 Hearing dates: 05/02/2014 Decision date: 05 February 2014 Jurisdiction: Common Law Before: Garling J Decision: 1. The application made by Ms Butler and Mr Mackney is dismissed. 2. Order Mr Mackney and Ms Butler to pay the legal costs of today's application. Catchwords: PROCEDURE - civil - stay writ of possession; application to - previous application to set aside default judgment unsuccessful - whether any proper basis to order a stay on the execution of a writ of possession Category: Principal judgment Parties: Pepper Finance Corporation Limited (P) Wayne Patrick Mackney (D1) Teresa Ann Butler (D2) Representation: Counsel: Ms Parsons (P) Wayne Mackney (D) Teresa Butler (D) File Number(s): 2012/383580 EX TEMPORE Judgment 1This is an application by Mr Wayne Patrick Mackney and Ms Teresa Ann Butler made orally today to me as the duty judge in circumstances of some urgency. There is no formal application nor is there any evidence in written form in support of the application. Nevertheless, in light of the apparent urgency, I have heard the matter. 2It appears that, on 13 March 2013, on the application of the plaintiff, Pepper Finance Corporation Pty Ltd, to which I will refer as Pepper Finance, the court entered judgment by default against both Mr Mackney and Ms Butler. It was in terms requiring them to give possession to Pepper Finance of the property which is known as 35 Lavelle Street, Bathurst. The judgment also ordered Mr Mackney and Ms Butler to pay to Pepper Finance the sum of $307,792.51, and, further that they pay Pepper Finance's legal costs in the amount of $4,494.20. 3Subsequently, a number of applications have been made to set aside the default judgment. Those applications have been unsuccessful. The Court for various reasons, and at various times, has declined to set aside the default judgment. 4The last occasion when the matter came before the Court for consideration was on 4 October 2013, when the duty judge, Hidden J, considered, over a space of two days, at various times, the application to set aside the judgment. His Honour declined so to do. 5At that time, his Honour recorded in his judgment that the plaintiff, Pepper Finance, had indicated that it would defer any action upon the writ of possession which had been issued and would not seek to ask the sheriff to execute the writ for a period of twenty-eight days. His Honour also indicated that Pepper Finance had indicated to him that if it did approach the sheriff, it would undertake to ask the sheriff not to execute the write before 4 December 2013, which was two months after his Honour's judgment. 6His Honour thought that that additional period would be sufficient to enable appropriate arrangements to be made between the parties to deal with the issues which were raised before him. 7It appears that the solicitors for Pepper Finance wrote to Mr Mackney and Ms Butler on 26 November 2013, providing them with a copy of the letter of the sheriff, indicating that he would take possession of the property and execute the writ at 11am today, 5 February 2014. Mr Mackney and Ms Butler say that they did not receive that letter and, further, that they have not received any correspondence at all from the office of the sheriff, indicating when the writ of possession would be executed. 8I am told by Ms Butler that on 31 January 2014 she sent an email to the solicitors for Pepper Finance, inquiring as to what, if anything, was happening with respect to the Writ for possession, and received a response on that day which enclosed a copy of the letter, 26 November 2013, and a copy of the attached correspondence, with the sheriff indicating that eviction would take place today. 9Ms Butler and Mr Mackney appeared in court this morning, seeking to have the court make an order staying the execution of writ of possession for a period of time. 10It became apparent, from the material about which I was informed, that neither Mr Mackney nor Ms Butler presently live at the property. However, they have not yet removed all of their belongings from the property. As well, they would wish to undertake some work on the property, which would have the effect, so they say, of improving the value of the property, which they both now accept must be sold. The work involves, in addition to the removal of their possessions, an interior repaint of the entire house. Mr Mackney estimates that it would take him about four weeks to undertake that task. Having been told that the house is a four-bedroom house and that the painting would require two coats of paint, I do not think that that estimate is unreasonable for a person of Mr Mackney's health and age. As well, I am informed that they wish to remove a shed which is on the property and undertake some minor repairs to the hot plate on a stove. Again, they wish to undertake some garden maintenance work in order to improve the garden and prepare the house properly so that it might be sold. Mr Mackney and Ms Butler estimate that it will take them about a week to return the garden to a reasonable standard. 11I am not prepared, and I indicated to the parties, on the material that was raised before me, to stay execution of the Writ of possession. 12The judgment of the court giving possession to Pepper Finance is now about eleven months old. Ms Butler and Mr Mackney have on a number of occasions previously had the opportunity of seeking to persuade the court that the judgment should be set aside. 13They have not been able to persuade this Court that that judgment should be set aside. They have known, since at least October, that Pepper Finance was proposing to take possession of the property no earlier than 4 December 2013. Whilst I appreciate, as Hidden J recorded in his judgment, that there have been some personal difficulties with respect to Mr Mackney and Ms Butler, I do not think that having had a period of two months after Hidden J's judgment up to 4 December 2013 and their having had a further period of six weeks from 4 December 2013 to the end of January 2014, they can be heard to say that such period is in any sense an unreasonable period for them to have given attention to the packing up of their possessions and removing them from the property in a timely manner. 14Their desire to improve the property and increase the value of the sale is a commendable one. However, neither the fact that their possessions have not yet been completely packed up and removed, nor their desire to improve the property, is a sufficient basis for the Court to stay the execution of the Writ of Possession. A Writ of Possession is issued as part of a process of enforcement of a judgment of this Court. The judgment of this Court, as I have said, was entered almost a year ago, attempts to set the judgment aside have been unsuccessful, and I can discern no good reason why this Court would not allow the plaintiff, Pepper Finance, to obtain the fruits of the judgment which the Court has entered. 15It became apparent, in the course of discussion, that the matters raised by Mr Mackney and Ms Butler, namely, access to the premises to enable them to pack up and remove their belongings, could be achieved, notwithstanding that possession had been taken by Pepper Finance, by a mutually acceptable arrangement between Mr Mackney and Ms Butler and Pepper Finance, no doubt through the help of the local real estate agent whose task it is to sell the property. 16As well, so far as the renovations are concerned, and I use that term to describe all of the work which I have earlier detailed, whilst it appears to the court that they would be sensible steps to be taken to improve the value of the home, whether or not Pepper Finance permitted those renovations to take place and by whom they are to take place, are matters entirely for it. After all, Pepper Finance is entitled to possession of the property. Such rights as Mr Mackney and Ms Butler have to the property have ceased in light of the Court's judgment, and the Court's order that they hand over possession to Pepper Finance, and the Court is not in a position to make any order which requires Pepper Finance to permit Mr Mackney and Ms Butler to undertake the renovations themselves. 17The lawyer for Pepper Finance, Ms Parsons, advanced on behalf of her client a number of reasons why her client is reluctant to, and declines to, agree to these renovations being undertaken by Ms Butler and Mr Mackney. I express no view as to whether those fears are reasonable or justified, but I accept that Pepper Finance has reasons which it regards as satisfactory to decline to permit that to happen. That is a matter for it, and it is not a matter into which the Court should intrude by making any order. 18There remains, then, the question of supervised access to enable the removal of possession. It is quite clear that the Court's order for possession of land does not give Pepper Finance any entitlement to the goods which are located on the land and which they do not own. Pepper Finance does not have a judgment in its favour which allows it to take possession of the goods and deal with them in any way contrary to their proper ownership. Equally, Mr Mackney and Ms Butler have no right legally to store their goods and chattels and possessions on the land which is now in the possession of Pepper Finance. 19In light of that, I stood the matter before me down to see if the parties could come to some mutual arrangement whereby supervised access could be given to Mr Mackney and Ms Butler, to pack up their goods and remove them in a civilised fashion from the property. Regrettably, it seems that this has been unable to be achieved. On the one hand, Mr Mackney and Ms Butler propose that they collect the keys to the property from the agent, they are allowed access to the property for the limited purpose of collecting and packing up their goods and belongings and removing them from the property, then returning the keys to the agent. No doubt this could be done on each day to which they seek access to the property, and no doubt agreement could be rationally reached that this process occur over a few days, perhaps more. However, there is no agreement to that. 20It is apparent that Pepper Finance takes the view, and so I am informed by their representative, Ms Parsons, that they have a policy that an agent should be physically present at the property at all times while Mr Mackney and Ms Butler have access to the property. Pepper Finance asserts, and I make no judgment about the correctness of this, that they are entitled to charge Mr Mackney and Ms Butler, the hourly cost of the estate agent attending and supervising and being present on the property and supervising the packing and removal. 21There seemed to me to be a sensible common ground; for that reason I encouraged the parties to reach it. It is regrettable that they have not. On the one hand, Mr Mackney and Ms Butler may seek in due course, in a court of appropriate jurisdiction, to argue that the condition imposed by Pepper Finance, of having, at their cost. a real estate agent present, is a wholly unreasonable one, and that, therefore, Pepper Finance, by denying them access to their goods, is in effect guilty of the tort of conversion of those goods. I make no comment about that and express no view whether such cause of action would be available. However, so long as Pepper Finance insist on an agent being present, at the cost of Mr Mackney and Ms Butler, that seems to me at least to raise a question about which Mr Mackney and Ms Butler may seek advice in due course. 22However, the short point remains this: The only application before me was to stay the Writ of execution. I decline to do so. There is no proper basis for doing so. As to arrangements between the parties, although the court has attempted to encourage the parties to agree on those arrangements, in the absence of any agreement this court simply has no power to impose any of those conditions on either of the parties, let alone to see that they are enforced. 23The application made this morning, orally, by Ms Butler and Mr Mackney is accordingly dismissed. 24I order Mr Mackney and Ms Butler to pay the legal costs of today's application. ********** 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: 07 March 2014