National Australia Bank Limited v Sayed (No 2) [2019] NSWSC 1077

National Australia Bank Limited v Sayed (No 2) [2019] NSWSC 1077

Because Ms Macarthur did not oppose the bank obtaining possession provided she had thirty days to vacate, the bank did not oppose that course, and Mr Sayed had not articulated proposed grounds of appeal warranting any further stay, the appropriate order was only to prevent execution of any writ of possession before 26 August 2019.

Jurisdiction
Australia
Judgment Date
26 July 2019
Procedural Posture
Proceedings for Possession / Notice of Motion Seeking Judgment for Possession and Issue of Writ of Possession After Determination of Cross Claim
Outcome
Upon the issue of any writ of possession, the writ is not to be executed before 26 August 2019.
Legal Topics
['mortgagee Possession' 'writ of Possession' 'stay of Execution' 'affidavit Identifying Persons in Occupation' 'notice of Intention to Appeal']
['mortgages and Securities' 'civil Procedure'] ['mortgagee Possession' 'writ of Possession' 'stay of Execution' 'affidavit Identifying Persons in Occupation' 'notice of Intention to Appeal']

Case Brief

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Procedural Posture

Proceedings for Possession / Notice of Motion Seeking Judgment for Possession and Issue of Writ of Possession After Determination of Cross Claim

Legal Issues

  1. 1 ["Whether the bank should be permitted to proceed towards judgment for possession and issue of a writ of possession after determination of Mr Sayed's cross-claim." 'Whether the affidavit filed in support of the notice of motion complied with the rules or accurately identified persons in occupation of the property.' 'Whether execution of any writ of possession should be delayed to allow Ms Macarthur to vacate the premises and to allow Mr Sayed to pursue appeal steps.']

Ratio Decidendi

Because Ms Macarthur did not oppose the bank obtaining possession provided she had thirty days to vacate, the bank did not oppose that course, and Mr Sayed had not articulated proposed grounds of appeal warranting any further stay, the appropriate order was only to prevent execution of any writ of possession before 26 August 2019.

Court Disposition

Upon the issue of any writ of possession, the writ is not to be executed before 26 August 2019.

Orders

  • ['Order that upon the issue of any writ of possession, the writ not be executed before 26 August 2019.']