Gustin Group Pty Ltd and anor. v Phoenicia Trading Pty Ltd and Gilmour [2015] NSWSC 1912

Supreme Court New South Wales

Medium Neutral Citation: Gustin Group Pty Ltd and anor. v Phoenicia Trading Pty Ltd and Gilmour [2015] NSWSC 1912 Hearing dates: 18 September 2015 Date of orders: 18 December 2015 Decision date: 18 December 2015 Jurisdiction: Common Law Before: Bellew J Decision: 1. The notice of motion filed on 9 September 2015 seeking a stay is dismissed. 2. The proceedings are stood over for further directions at 9.15am on Friday 5 February 2016 before me. Catchwords: PRACTICE AND PROCEDURE – Where proceedings brought for possession following default under loan agreement – Where Deed of Forbearance entered into and orders made by consent granting plaintiff possession of property and monetary judgement – Writ of possession issued – Defendant obtained a stay of proceedings pending the sale of the property by auction – Defendant then cancelled the auction and commenced proceedings seeking to set aside the loan agreement, Deed of Forbearance and consent orders on the basis that they were (inter alia) unjust – Where defendant also filed a motion seeking a stay of the consent orders – Evidence that the defendant had the benefit of independent legal advice both as to the loan agreement and the Deed of Forbearance – No serious issue to be tried – Balance of convenience in favour of the plaintiff – Notice of Motion seeking a stay dismissed Legislation Cited: Civil Procedure Act 2005 (NSW) Contracts Review Act 1980 (NSW) Cases Cited: GE Personal Finance Pty Limited v Smith [2006] NSWSC 889 Gustin Group Pty Limited v Phoenicia Trading Pty Limited [2015] NSWSC 1071 Category: Principal judgment Parties: Donald Gilmour - Applicant Gustin Group Pty Ltd - Respondent Representation: Counsel: M W Young SC and M Tovey - Applicant N Newton - Respondent