Permanent Trustee Company Ltd v Burkitt Australia Pty Ltd [2006] NSWSC 1343

Permanent Trustee Company Ltd v Burkitt Australia Pty Ltd [2006] NSWSC 1343

The stay was refused because, although the court accepted that execution would disrupt the farm and family home, that there was unlikely to be capital loss to the plaintiff, and that a refinance offer had been made, the arrears had not in fact been brought up to date, the plaintiff had been entitled to possession under a judgment for nearly two years, and the defendant had already been given substantial time and repeated opportunities to refinance. In those circumstances a stay would not be a proper exercise of discretion.

Jurisdiction
Australia
Judgment Date
20 September 2006
Procedural Posture
Application for Stay of Execution of Writ of Possession / Ex Tempore Judgment on Defendant's Application for Leave to File a Notice of Motion Seeking a 21 Day Stay
Outcome
Leave to file the notice of motion refused; stay of execution of the writ of possession refused.
Legal Topics
['stay of Execution' 'writ of Possession' 'judgment for Possession' 'refinance' "mortgagee's Entitlement to Possession"]
['procedure' 'property' 'mortgage Possession'] ['stay of Execution' 'writ of Possession' 'judgment for Possession' 'refinance' "mortgagee's Entitlement to Possession"]

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Stay of Execution of Writ of Possession / Ex Tempore Judgment on Defendant's Application for Leave to File a Notice of Motion Seeking a 21 Day Stay

Legal Issues

  1. 1 ['Whether the defendant should be granted leave to file a notice of motion seeking a 21-day stay of execution of the writ of possession.' 'Whether a stay of execution should be granted where there was a last-minute proposed refinance, an offer to pay arrears, no apparent risk of capital loss to the plaintiff, and repeated prior extensions of time.']

Ratio Decidendi

The stay was refused because, although the court accepted that execution would disrupt the farm and family home, that there was unlikely to be capital loss to the plaintiff, and that a refinance offer had been made, the arrears had not in fact been brought up to date, the plaintiff had been entitled to possession under a judgment for nearly two years, and the defendant had already been given substantial time and repeated opportunities to refinance. In those circumstances a stay would not be a proper exercise of discretion.

Court Disposition

Leave to file the notice of motion refused; stay of execution of the writ of possession refused.

Orders

  • ['Leave to file the notice of motion is refused.' 'The exhibits are to be returned.']