La Trobe Financial Management Ltd v El Khouri [2019] NSWSC 1812

Supreme Court New South Wales

Medium Neutral Citation: La Trobe Financial Management Ltd v El Khouri [2019] NSWSC 1812 Hearing dates: 16 December 2019 Date of orders: 16 December 2019 Decision date: 16 December 2019 Jurisdiction: Common Law Before: Beech-Jones J Decision: 1. Refuse prayer 5 of the Notice of Motion. 2. The Notice of Motion is otherwise dismissed. Catchwords: Stay of writ of possession – no question of principle Legislation Cited: Civil Procedure Act 2005 Category: Procedural and other rulings Parties: La Trobe Financial Management Limited (Plaintiff) Said El Khouri (Defendant) Karam Elkhouri & Philippe Elkhouri (Applicants) Representation: Counsel: M Collins (Respondent) P Newton (Applicants)

Solicitors: Dentons (Plaintiff) Proctor Phair Lawyers (Applicants) File Number(s): 2017/184309

EX TEMPORE Judgment (Revised 18 December 2019) 1. The applicants on the notice of motion are the executors of the estate of the late Said El Khouri. Said El Khouri was the defendant to proceedings brought by the plaintiff, La Trobe Financial Asset Management Limited ("La Trobe"), seeking possession of premises at an address in Wentworth Street, Point Piper ("the property"). It is fair to describe the property as a luxury unit. In the circumstances in which I will explain, there is a subsisting writ of possession in favour of La Trobe over the property which is due to be executed some time tomorrow, 17 December 2019. Prayer 5 of the applicant's notice of motion seeks a stay of the execution of that writ of possession until 30 April 2020. 2. Counsel for the applicants, Mr Newton, identified the source of the Court's power to stay the writ of possession as section 135 of the Civil Procedure Act 2005. That is obviously correct. However, the metes and bounds of any such discretion in a case such as this where there is no dispute that there has been a default and there is no defence to the principal claim are very unclear. I will approach the matter on the basis that the discretion to grant a stay should be exercised having regard to: the personal circumstances of the defendants; whether the defendant has had or seeks to exercise a reasonable opportunity to sell their asset; whether there has been any relevant delay by either party; and the prejudice to the judgment creditor should the application be granted. If anything, that description appears to be a relatively liberal statement of the factors to be considered in the exercise of the power to stay a writ. 3. As noted, the property could be fairly described as a luxury unit. By way of further explanation, it is positioned on the top two floors of a six storey residential tower with extensive views of Sydney Harbour. On the top of residential tower exists a terrace area which at some stage comprised part of the common property.