Barclay Finance Pty Ltd v Manning [2017] NSWSC 1050

Supreme Court New South Wales

Medium Neutral Citation: Barclay Finance Pty Ltd v Manning [2017] NSWSC 1050 Hearing dates: 26 July 2017 Date of orders: 26 July 2017 Decision date: 26 July 2017 Jurisdiction: Common Law Before: Lonergan J Decision: See paragraph [31] Catchwords: CIVIL PROCEDURE – mortgages and securities – possession – application for stay of writ of possession – hardship Legislation Cited: Civil Procedure Act 2005 (NSW) s 135 Cases Cited: GE Personal Finance Ltd v Smith [2006] NSWSC 889 Westpac Banking Corporation v Diagne [2014] NSWSC 1623 Category: Procedural and other rulings Parties: Barclay Finance Pty Ltd (Plaintiff) Robert Manning (First Defendant) Claire Louise Manning (Second Defendant) Representation: Counsel: L R Young (Plaintiff) H Mann (First Defendant)

Solicitors: Elliott May Lawyers (Plaintiff) Swaab Attorneys (First Defendant) File Number(s): 2016/371580 Publication restriction: Nil

Judgment 1. On the afternoon of 26 July 2017, the first defendant requested an urgent hearing of a notice of motion seeking a stay of writ of possession. In support of the application, he relied upon his affidavit sworn 26 July 2017, a letter from his solicitors to a real estate agent, Robert Todarello at Northside Realtors dated 26 July 2017, and a proposed contract for sale of the a property in Naremburn ("the Property"), which is the subject of the writ of possession. 2. The Property is the home of the defendants and their son who, relevant to this application, is in year 12 and was about to start his trial exams on 31 July 2017. 3. The background to this application is that a notice to vacate the property had been served on 19 June 2017 pursuant to the processes of this court, and that was to be enforced at 10:30 am on 27 July 2017; that is the morning following this application being brought before me as Duty Judge. 4. Ms Young of counsel was able to appear at short notice on behalf of the plaintiff and assisted with the background to the application and made helpful oral submissions. 5. I formed the view, given the material in the affidavit and the apparent arrangements made for the sale of the property together with discussion and cooperation between counsel for the parties, that the writ should be stayed on certain conditions. I made various orders which were entered with written reasons to follow given the obvious urgency of the application.