Gustin Group Pty Ltd and anor. v Phoenicia Trading Pty Ltd and Gilmour [2015] NSWSC 1912

Gustin Group Pty Ltd and anor. v Phoenicia Trading Pty Ltd and Gilmour [2015] NSWSC 1912

The stay was refused because the applicant did not establish a serious question to be tried. The evidence showed that he was legally represented and advised about the Deed of Forbearance, the loan agreement and mortgage, including advice about the consequences of signing the Deed and the poor prospects of challenging the transaction. Nothing impugned that advice. In any event, the balance of convenience favoured Gustin because the consent orders had been made almost eight months earlier, the debt was escalating, the property value would not indefinitely remain sufficient to cover the debt, and a final hearing would be some considerable time away.

Jurisdiction
Australia
Judgment Date
18 December 2015
Procedural Posture
Practice and Procedure Application for a Stay in Possession Proceedings Following Consent Orders / Notice of Motion Seeking a Stay of Consent Orders
Outcome
Notice of motion seeking a stay dismissed.
Legal Topics
['stay of Execution' 'consent Orders' 'deed of Forbearance' 'unjust Contracts' 'independent Legal Advice' 'serious Question to Be Tried' 'balance of Convenience']
['civil Procedure' 'contracts' 'mortgages and Possession of Land'] ['stay of Execution' 'consent Orders' 'deed of Forbearance' 'unjust Contracts' 'independent Legal Advice' 'serious Question to Be Tried' 'balance of Convenience']

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Procedural Posture

Practice and Procedure Application for a Stay in Possession Proceedings Following Consent Orders / Notice of Motion Seeking a Stay of Consent Orders

Legal Issues

  1. 1 ['Whether the applicant demonstrated a serious question to be tried in seeking to set aside the Deed of Forbearance, loan agreement, mortgage and consent orders.' 'Whether the balance of convenience favoured granting a stay of the consent orders for possession and monetary judgment.']

Ratio Decidendi

The stay was refused because the applicant did not establish a serious question to be tried. The evidence showed that he was legally represented and advised about the Deed of Forbearance, the loan agreement and mortgage, including advice about the consequences of signing the Deed and the poor prospects of challenging the transaction. Nothing impugned that advice. In any event, the balance of convenience favoured Gustin because the consent orders had been made almost eight months earlier, the debt was escalating, the property value would not indefinitely remain sufficient to cover the debt, and a final hearing would be some considerable time away.

Court Disposition

Notice of motion seeking a stay dismissed.

Orders

  • ['The notice of motion filed on 9 September 2015 seeking a stay is dismissed.' 'The proceedings are stood over for further directions at 9.15am on Friday 5 February 2016 before Bellew J.']