Barclay Finance Pty Ltd v Manning [2017] NSWSC 1050

Barclay Finance Pty Ltd v Manning [2017] NSWSC 1050

Although the first defendant had delayed confronting the proceedings until the last minute, there was evidence of a very recent arrangement to sell the property, sale appeared to be the defendants' only option, orderly sale was important to maximise the price given the mortgage debts and sale expenses, and hardship would be caused to the defendants' 17-year-old son who was about to commence HSC trial exams. Those circumstances justified a short stay of the writ of possession on strict conditions.

Jurisdiction
Australia
Judgment Date
26 July 2017
Procedural Posture
Application for Stay of Writ of Possession / Urgent Notice of Motion Before Duty Judge
Outcome
Stay of the writ of possession granted up to and including 5:00 pm on 11 August 2017 on strict conditions, with the matter listed for review on 10 August 2017.
Legal Topics
['possession' 'stay of Writ of Possession' 'hardship' 'orderly Sale of Property']
['civil Procedure' 'mortgages and Securities'] ['possession' 'stay of Writ of Possession' 'hardship' 'orderly Sale of Property']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether execution of the writ of possession should be stayed.' 'Whether the first defendant had advanced a sufficient basis for a stay by reference to a defence, refinance, sale of the property, or hardship.' 'What conditions should attach to any stay of the writ of possession.']

Ratio Decidendi

Although the first defendant had delayed confronting the proceedings until the last minute, there was evidence of a very recent arrangement to sell the property, sale appeared to be the defendants' only option, orderly sale was important to maximise the price given the mortgage debts and sale expenses, and hardship would be caused to the defendants' 17-year-old son who was about to commence HSC trial exams. Those circumstances justified a short stay of the writ of possession on strict conditions.

Court Disposition

Stay of the writ of possession granted up to and including 5:00 pm on 11 August 2017 on strict conditions, with the matter listed for review on 10 August 2017.

Orders

  • ["On condition that the First defendant pays on or before 5:00 pm on 31 July 2017 the sum of $10,000 in clear funds to the plaintiff's solicitor, the writ of possession of the Property be stayed up to and including 5:00 pm on 11 August 2017." 'Under s 135(2)(b) of the Civil Procedure Act 2005, the Sheriff take no...