Secure Funding Pty Limited v NSW Trustee & Guardian [2017] NSWSC 1588

Secure Funding Pty Limited v NSW Trustee & Guardian [2017] NSWSC 1588

The stay was granted because, on the limited material, the probate valuation of the property at $1,550,000 indicated that the plaintiff's debt and other identified liabilities would likely be covered, reducing the plaintiff's exposure, and the second defendant appeared to be making a bona fide attempt to refinance the property.

Jurisdiction
Australia
Judgment Date
13 November 2017
Procedural Posture
Application to Stay Writ of Possession / Urgent Notice of Motion Before Duty Judge
Outcome
Stay granted for 28 days; second defendant ordered to pay the plaintiff's costs of the notice of motion.
Legal Topics
['stay of Writ of Possession' 'mortgage Default' 'refinancing' 'estate Property' 'beneficiary Interests']
['civil Law' 'property Law' 'mortgage Enforcement' 'civil Procedure'] ['stay of Writ of Possession' 'mortgage Default' 'refinancing' 'estate Property' 'beneficiary Interests']

Case Brief

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Procedural Posture

Application to Stay Writ of Possession / Urgent Notice of Motion Before Duty Judge

Legal Issues

  1. 1 ['Whether execution of the writ of possession should be stayed under s 67 of the Civil Procedure Act 2005 where the second defendant sought time to refinance the property.' "Whether the plaintiff's exposure if a stay were granted was sufficiently protected by the value of the property." 'Whether a prior agreed stay and alleged default of that agreement should prevent a further stay.']

Ratio Decidendi

The stay was granted because, on the limited material, the probate valuation of the property at $1,550,000 indicated that the plaintiff's debt and other identified liabilities would likely be covered, reducing the plaintiff's exposure, and the second defendant appeared to be making a bona fide attempt to refinance the property.

Court Disposition

Stay granted for 28 days; second defendant ordered to pay the plaintiff's costs of the notice of motion.

Orders

  • ['Pursuant to s 67 of the Civil Procedure Act, the execution of the write of possession is stayed for a period of 28 days.' "The second defendant is to pay the costs of the plaintiff of today's notice of motion."]