Australian and New Zealand Banking Group Limited v Fisher [2014] NSWSC 1643

Supreme Court New South Wales

Medium Neutral Citation: Australian and New Zealand Banking Group Limited v Fisher [2014] NSWSC 1643 Hearing dates: 18 November 2014 Decision date: 18 November 2014 Before: Adams J Decision: Notice of motion dismissed. Catchwords: PROCEDURE - Application for a stay of a writ of execution - cross-claim only as to interest - sale necessary to enable payment of capital debt Category: Principal judgment Parties: Australian and New Zealand Banking Group Limited (Plaintiff) Brian Stanley Fisher (First defendant) Representation: Counsel: M Rose (Plaintiff) J Simpkins (First defendant) Solicitors: Norton Rose Fulbright Australia (Plaintiff) Michael Kreveld Legal (First defendant) File Number(s): 2013/341101

EX TEMPORE Judgment 1 This is a notice of motion seeking a stay of a writ of execution issued on 14 July 2014 in respect of certain property mortgaged to the plaintiff by the defendants. The writ depends on a judgment entered by default on 25 May 2014 in favour of the plaintiff against the first defendant. 2It is sought to set aside that judgment upon the basis that there is a defence to part of the claim, namely, in respect of interest. Mr Simpkins, who appears for the first defendant, has candidly conceded that his client has no defence to the claim for repayment of capital. That sums is, I am informed, greater than the value of the property. At all events the property would need to be sold to satisfy the capital debt. It appears, therefore, that there is no point in staying execution of the writ of possession and for that reason the notice of motion must be dismissed. 3Ordinarily, an order for costs would be made against the defendant, however, the bank's position is secured by virtue of the relevant loan agreements and, accordingly, it is unnecessary to make such an order. 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 November 2014