Aquamore Credit Equity Pty Ltd v Bent [2019] NSWSC 143

Aquamore Credit Equity Pty Ltd v Bent [2019] NSWSC 143

The stay was discharged because the first defendant failed to disclose on the ex parte application the existence and effect of the Deed of Forbearance, including that it prevented the defendants from seeking a stay, and that non-disclosure would alone justify discharge; additionally, the deed expressly prohibited...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
20 February 2019
Procedural Posture
Application Concerning Stay of Execution of Writ of Possession / Plaintiff's Application for Discharge of Ex Parte Stay
Outcome
Stay discharged and costs awarded to the plaintiff on an indemnity basis.
Legal Topics
['possession of Land' 'writ of Possession' 'ex Parte Application' 'full and Frank Disclosure' 'deed of Forbearance' 'indemnity Costs']
['land Law' 'civil Procedure' 'costs'] ['possession of Land' 'writ of Possession' 'ex Parte Application' 'full and Frank Disclosure' 'deed of Forbearance' 'indemnity Costs']

Source-derived case record

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Procedural Posture

Application Concerning Stay of Execution of Writ of Possession / Plaintiff's Application for Discharge of Ex Parte Stay

Legal Issues

  1. 1 ['Whether the ex parte stay of execution of the writ of possession should be discharged because the first defendant failed to disclose the Deed of Forbearance and its terms.' "Whether the defendants should pay the plaintiff's costs of the application on an indemnity basis."]

Ratio Decidendi

The stay was discharged because the first defendant failed to disclose on the ex parte application the existence and effect of the Deed of Forbearance, including that it prevented the defendants from seeking a stay, and that non-disclosure would alone justify discharge; additionally, the deed expressly prohibited the stay being sought. The defendants were ordered to pay indemnity costs because full disclosure had not been made and the plaintiff was entitled to costs under cl 7 of the deed on a solicitor and client basis.

Court Disposition

Stay discharged and costs awarded to the plaintiff on an indemnity basis.

Orders

  • ['Stay order made by Davies J on 19 February 2019 is discharged.' "Defendants are to pay the Plaintiff's costs of 20 February 2019 on an indemnity basis." 'The listing of the proceeding on Friday 22 February 2019 is vacated.']