Pascoe v Elcheikh [2014] NSWSC 273

Pascoe v Elcheikh [2014] NSWSC 273

A further stay was refused because the Defendant had no arguable defence to the strata levy judgment or to the possession judgment, had taken no effective steps for about 21 months after service of the Local Court process and after an earlier stay, had not arranged alternative accommodation or steps to set aside the judgments, and produced no definite evidence of any arrangement or ability to pay the Trustee any money.

Jurisdiction
Australia
Judgment Date
18 March 2014
Procedural Posture
Interlocutory Application / Defendant's Notice of Motion Filed 14 March 2014 Seeking a Stay of Execution on a Writ of Possession and Setting Aside of Judgment
Outcome
Defendant's Notice of Motion filed 14 March 2014 is dismissed.
Legal Topics
['mortgages' 'writ of Possession' 'stay of Execution' 'default Judgment' 'strata Levies' 'sequestration Order' 'hardship']
['real Property' 'civil Procedure' 'bankruptcy' 'strata Schemes'] ['mortgages' 'writ of Possession' 'stay of Execution' 'default Judgment' 'strata Levies' 'sequestration Order' 'hardship']

Case Brief

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Procedural Posture

Interlocutory Application / Defendant's Notice of Motion Filed 14 March 2014 Seeking a Stay of Execution on a Writ of Possession and Setting Aside of Judgment

Legal Issues

  1. 1 ['Whether execution of the writ of possession should be stayed further on hardship grounds.' 'Whether the Defendant had an arguable defence to the Local Court strata levy claim or the Supreme Court possession judgment.' "Whether the Defendant's failure to act after service of proceedings and after an earlier stay weighed against granting further indulgence." 'Whether the absence of any offer or arrangement to pay the Trustee weighed against a further stay.']

Ratio Decidendi

A further stay was refused because the Defendant had no arguable defence to the strata levy judgment or to the possession judgment, had taken no effective steps for about 21 months after service of the Local Court process and after an earlier stay, had not arranged alternative accommodation or steps to set aside the judgments, and produced no definite evidence of any arrangement or ability to pay the Trustee any money.

Court Disposition

Defendant's Notice of Motion filed 14 March 2014 is dismissed.

Orders

  • ["Defendant's Notice of Motion filed 14 March 2014 is dismissed."]