Leda Holdings Pty Ltd v Naturelink Environmental Services Pty Ltd (in liquidation) [2016] NSWSC 619

Supreme Court New South Wales

Medium Neutral Citation: Leda Holdings Pty Ltd v Naturelink Environmental Services Pty Ltd (in liquidation) [2016] NSWSC 619 Hearing dates: 10 May 2016 Date of orders: 10 May 2016 Decision date: 10 May 2016 Before: Adamson J Decision: (1) Dismiss the Notice of Motion for a stay of the writ of possession.

(2) Order Mr George Barnes to pay the plaintiff's costs of the Notice of Motion. Catchwords: PRACTICE AND PROCEDURE – plaintiff assignee of first registered mortgage and mortgagee of second registered mortgage – defendant mortgagor of property – occupier guarantor of second registered mortgage – orders for possession made by consent between plaintiff and defendant – application made by occupier to be joined as defendant to proceedings after writ had been issued – application for stay of writ of possession – application dismissed Legislation Cited: Conveyancing Act 1919 (NSW), s 12 Uniform Civil Procedure Rules 2005 (NSW), r 6.8 Real Property Act 1900 (NSW), s 57 Category: Principal judgment Parties: Leda Holdings Pty Ltd (Plaintiff) Naturelink Environmental Services Pty Ltd (in liquidation) (Defendant) George Frederic Barnes (Applicant/Occupier) Representation: Counsel: AC Casselden (Plaintiff) A Cheshire SC (Applicant/Occupier)

Solicitors: Knight Lawyers (Plaintiff) Bransgroves Lawyers (Applicant/Occupier) File Number(s): 2016/22624

Judgment

Introduction 1. By notice of motion, George Barnes sought orders that he be added as a defendant to these proceedings and that the writ of possession for a property in Terrace Road, North Richmond (the Property) be stayed until 5pm on 23 May 2016. 2. As the writ was due to be executed on 10 May 2016, shortly after the matter came on for hearing, I decided the matter on the basis of the evidence to hand but also, in part, on the statements made by counsel from the bar table. Mr Casselden, who appeared for Leda Holdings Pty Ltd (Leda), the plaintiff, relied in part on the allegations in the statement of claim, which resulted in consent judgment and orders being made by the Registrar for possession of the Property on 18 March 2016. He also relied on an affidavit of Robert Kalde, the plaintiff's solicitor. Mr Cheshire SC, who appeared on behalf of Mr Barnes, relied on an affidavit of his instructing solicitor, Nicola Craven. There was no appearance on behalf of Naturelink Environmental Services Pty Ltd (in liquidation) (Naturelink), the defendant, which, as referred to above, consented to the orders for possession and the issue of the writ. 3. At the conclusion of the oral hearing before me on 10 May 2016, I refused the stay and ordered Mr Barnes to pay the plaintiff's costs of the application. My reasons from refusing orders are set out below.