Supreme Court New South Wales Medium Neutral Citation: Belle Corp Equity Pty Ltd v Defined Properties Pty Ltd (No. 2) [2016] NSWSC 1564 Hearing dates: 3 November 2016 Date of orders: 03 November 2016 Decision date: 03 November 2016 Jurisdiction: Common Law Before: Davies J Decision: 1. Judgment for the Plaintiff for possession of the whole of the land described in folio identifier 41/SP77109 being the land situated at and known as A5/24-32 Lexington Drive, Bella Vista NSW in the State of New South Wales. 2. Execution of writ of possession stayed until Friday, 16 December 2016. Catchwords: REAL PROPERTY - mortgages – possession of land – no defence to claim – adjournment previously granted to enable refinancing – further adjournment sought - adjournment refused – judgment for possession Cases Cited: Belle Corp Equity Pty Ltd v Defined Properties Pty Ltd [2016] NSWSC 1454 Category: Procedural and other rulings Parties: Belle Corp Equity Pty Ltd (Plaintiff) Defined Properties Pty Ltd (Defendant) Representation: Counsel: A Rogers (Plaintiff) G Dimitriou (by leave - Defendant) Solicitors: Baccus Investments Ltd (Plaintiff) Unrepresented (Defendant) File Number(s): 2016/154403 Judgment 1. I gave judgment in this matter on 12 October 2016 where I summarised the background to the claim now made and struck out the Defence filed by the Defendant as not disclosing a defence to the claim: Belle Corp Equity Pty Ltd v Defined Properties Pty Ltd [2016] NSWSC 1454. 2. On that occasion Mr Dimitriou, who was given leave to appear for the Defendant, sought an adjournment for a short period of time which he stipulated on two occasions was two weeks. That would, he said, enable the mortgage company to complete its refinance of the Defendant's debt and undertakes its valuation. 3. The adjournment was opposed by the Plaintiff but in the circumstances I granted an adjournment to today which was, in fact, longer than the two week period sought. I directed that the Defendant was to file and serve any amended defence it proposed to rely on by 26 October and that any evidence on which it intended to rely in response to the Plaintiff's Notice of Motion for summary judgment was also to be served by 26 October. 4. No amended defence has been filed and Mr Dimitriou, who has again been given leave to appear for the company, accepts that there is no defence in terms of the default that has been made in repayment of the principal and interest under the loan agreement. He nevertheless seeks a further adjournment so that a proposed refinance with an associated company to the Plaintiff can be put in place, and to that end he has given to me an indicative loan offer dated 23 August 2016 from the proposed refinancing company. 5. In his affidavit, which I have given him leave to file to day notwithstanding that it is outside the time limited for its filing, he records a conversation with Mr Kremnizer, the solicitor for both the Plaintiff and the refinancing company, where Mr Kremnizer is supposed to have said that the advance was unconditionally approved. The Plaintiff opposes the application for the further adjournment and seeks the judgment for possession of the land but not a judgment for debt. 6. Mr Dimitriou says that if judgment is given it may be the case that the refinance will not go through because of the impact of the judgment on the credit status of the company. I quite frankly do not understand that submission in the circumstances where the refinancing company is associated and operated by Mr Kremnizer in the same way that the Plaintiff company is. Mr Kremnizer and the refinancing company are fully apprised of the present proceedings and are instructing counsel to obtain possession of the land because of the default under the earlier loan agreement in March 2015. At the same time they appear to be arranging a refinance of the debt owed. 7. Mr Dimitriou says further that the reason that the Court's orders were not complied with was because he has had to give most of his attention to another case being heard before Sackar J in this Court and is says that if successful in that case the Defendant will be in a position to pay out the principal and interest owing under the loan agreement entered into on 11 March 2015. 8. In the circumstances of the Defendant having been given an adjournment on the last occasion for a longer period than was sought so that refinance could be completed, I am not prepared to adjourn the proceedings any further. 9. There is no defence to the claim for possession either in any document or by anything that Mr Dimitriou has told me from the Bar table. If there is a dispute, as he suggests, about the precise amount owing under the loan agreement that is a matter that can be raised and argued at another time. Judgment will not be given in favour of the Plaintiff for any amount of money but only for possession of the land to which the Plaintiff is entitled by the lack of any defence to the claim. 10. As has been suggested by counsel for the Plaintiff, it would be appropriate that any execution of a writ of possession be stayed for a period of time which will, effectively, give the Defendant the time it now seeks to put in place the refinance arrangement. 11. I am satisfied as to the service of occupiers as demonstrated in the affidavit of Christopher James Schipp sworn 15 June 2016. There will be judgment for the Plaintiff for possession of the whole of the land described in folio identifier 41/SP77109, being the land situated at and known as A5/24-32 Lexington Drive, Bella Vista in the State of New South Wales. The Plaintiff is given leave to issue a write to enforce the judgment of the Court. Such writ is not to be executed before Friday, 16 December 2016. 12. I note that this judgment does not prevent the Plaintiff at a later time seeking a judgment for debt nor does it prevent the Defendant by appropriate means raising any issue as to the quantum of the debt owed to the Plaintiff. ********** 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: 04 November 2016