Bellwether Capital Pty Ltd v Holmes [2019] NSWSC 1526

Supreme Court New South Wales

Medium Neutral Citation: Bellwether Capital Pty Ltd v Holmes [2019] NSWSC 1526 Hearing dates: 4 November 2019 Date of orders: 04 November 2019 Decision date: 04 November 2019 Jurisdiction: Common Law Before: Davies J Decision: Defendant's notice of motion is dismissed Catchwords: LAND LAW – possession of land – application for defendant for stay of execution of writ – late application – no basis shown for stay Cases Cited: GE Personal Finance Limited v Smith [2006] NSWSC 889; (2006) NSW ConvR 56-164 Category: Procedural and other rulings Parties: Bellwether Capital Pty Ltd (Plaintiff) Catherine Margaret Holmes (Defendant) Representation: Counsel: Catherine Margaret Holmes (Defendant) (ex parte)

Solicitors: Elliot May Lawyers (Plaintiff) Self-represented (Defendant) File Number(s): 2018/398243

Judgment 1. The defendant applies by notice of motion seeking a stay of a writ of possession which is due to be executed by the Sheriff at 9.30 tomorrow morning 5 November 2019. The notice of motion also seeks the following orders: 3. That this matter is settled and the defendant and the plaintiff come to a reasonable final and binding agreement in respect to costs and any future claims that the plaintiff may make for interest owed, further costs and/or damages. 4. If the defendant and the plaintiff cannot agree that this matter be set aside pending the outcome of an investigation into this matter together with an estate matter which I have been dealing with (sic). 1. The application is made ex parte, no contact having been made by the defendant with the plaintiff or its lawyers. 2. The defendant has handed to me a document which is said to be an affidavit by her dated 27 September 2019. The affidavit is not signed nor sworn. It provides very little information about the loan and the default in respect of which the writ of possession has been issued. 3. A questioning by me of the defendant elicited that the loan was originally taken out by way of second mortgage in the sum of $100,000 with a monthly interest rate of 2.9 per cent. The defendant defaulted under that loan agreement and mortgage in August 2017 having apparently paid in advance the interest for the first year under that mortgage loan agreement. The Statement of Claim discloses that the default was a failure to repay the capital of the loan on the expiry date of the loan. 4. The defendant says that she was served with the Statement of Claim by the plaintiff in December 2018. It does not appear that any defence was filed to that Statement of Claim. On 18 September 2019 a defence purportedly filed by the defendant on 17 September 2019, long after judgment had been given, was rejected by the Registrar under UCPR r 4.10(4). 5. The defendant said that she engaged solicitors, and in the rather voluminous material provided with the affidavit, there seems to be an indication that those solicitors were at least in correspondence earlier this year attempting to reach some agreement with the plaintiff concerning the default. As at the present time, the default has not been remedied, nor is there any proposal for remedying the default such as a sale of the property or a refinance. The document headed "Affidavit" largely deals with personal problems that have befallen various members of the defendant's family including the defendant. 6. Having regard to the principles set out by Johnson J in GE Personal Finance Limited v Smith [2006] NSWSC 889; (2006) NSW ConvR 56-164, I can see no basis upon which it would be appropriate to grant a stay of the execution. As I have indicated, there is nothing in the material I have or in the information which I have been given that suggests that if a stay is granted the default will be remedied in the near future or at all. 7. The defendant did not inform me, but the court file reveals, that the Registrar granted a stay to the defendant on 18 September 2019 until 9 October 2019. The Registrar also ordered that the defendant was to provide information to the plaintiff about her entitlements under a Queensland estate, presumably from which the defendant was hoping to pay out the debt to the plaintiff. The proceedings were stood over to 9 October 2019. On that day there was no appearance for the defendant and no information had been provided regarding the estate entitlements. 8. No real explanation has been provided about the delay in approaching the Court on the present occasion apart from the defendant asserting that she has not been well enough to come to Court. 9. There appears to be an issue, according to the defendant, about the reasonableness of the interest rate being charged by the plaintiff. That is a matter which is not foreclosed by the execution of any writ for possession. It is ultimately a matter of accounting between the plaintiff and the defendant how much must be paid to the plaintiff to satisfy the terms of the loan arrangement between the parties. 10. As to orders 3 and 4 sought by the defendant, the Court cannot order the parties to settle proceedings, nor can it order "an investigation" into the proceedings. It appears from these orders that the defendant's motive in seeking a stay is simply to have more time to try to settle the debt. There is no evidence that the plaintiff is desirous of following that course, or that there is any chance of a resolution by negotiation. 11. For these reasons the defendant's notice of motion is dismissed.