Belle Corp Equity Pty Ltd v Defined Properties Investment Pty Ltd [2017] NSWSC 946

Supreme Court New South Wales

Medium Neutral Citation: Belle Corp Equity Pty Ltd v Defined Properties Investment Pty Ltd [2017] NSWSC 946 Hearing dates: 14 July 2017 Decision date: 14 July 2017 Jurisdiction: Common Law Before: Adamson J Decision: Refuse the application for a stay. Catchwords: PRACTICE AND PROCEDURE – stay refused in light of several prior indulgences given and lack of material prejudice having regard to prospect of sale by auction Category: Principal judgment Parties: Belle Corp Equity Pty Ltd (Plaintiff) Defined Properties Investment Pty Ltd (Defendant) Representation: Counsel: A Rogers (Plaintiff) G Dimitriou (Director (by leave)/Defendant)

Solicitors: Baccus Investments Limited (Plaintiff) File Number(s): 2016/154403 Publication restriction: Nil

Judgment: EX TEMPORE

Introduction 1. The defendant, Defined Properties Investment Pty Limited, seeks a stay of a writ of possession obtained by Belle Corp Equity Pty Limited in proceedings which were commenced on 19 May 2016 in this Court. The writ is due to be executed at 9am today. The defendant's application was listed for hearing before me, as Duty Judge, at 8.30am today.

The facts 1. The defendant sought a loan offering security over a property at Bella Vista (the Security Property). The plaintiff advanced money for 12 months to the defendant on the basis of a mortgage over the Security Property. Some months after the mortgage was entered into, the defendant defaulted. Ultimately, in May 2016, the defendant commenced these proceedings by filing a statement of claim for judgment and possession. 2. On 3 November 2016, when the matter came before Davies J, the Possession List Judge, the defendant accepted that it had no defence. His Honour gave judgment for possession in favour of the plaintiff, but stayed any execution of the writ of possession flowing from such judgment until 16 December 2016 in order to give the defendant an opportunity to refinance the debt. 3. On 13 February 2017, the Sheriff issued a notice to the defendant to vacate the Security Property by 22 March 2017. The defendant apparently entered into a contract for sale of the Security Property and sought a stay of the writ of the possession on that basis. Orders were made by Rothman J on 24 March 2017 that the writ not be executed until 9 May 2017. 4. On 3 April 2017, the matter was referred to me as Duty Judge to vacate the stay on the basis that the plaintiff had serious doubts about the purported sale of the Security Property, in part, on the basis that the purchaser was a de-registered company. Accordingly, I stood the matter over to 10 April 2017 in order that the defendant could regularise the position. 5. The matter was listed before Campbell J who declined to vacate the stay which had been ordered by Rothman J, to which I have referred to above. On 12 May 2017, the Sheriff issued a further notice to vacate the property which required the defendant to vacate the Security Property by 18 May 2017. The defendant re-listed the matter before the then Duty Judge, Campbell J, on 17 May 2017. Campbell J stayed the writ of possession until 30 May 2017 on the assurance of Mr Dimitriou, the defendant's sole director who appeared with leave on its behalf, that sale of the Security Property would be effected by 29 May 2017. 29 May 2017 came and went; no sale was effected. The solicitor for the defendant informed the solicitors for the plaintiff that settlement would occur on 5 June 2017. On 30 May 2017, the matter was re-listed before Campbell J, who declined to grant a further stay. Accordingly, the operative stay expired on 30 May 2017. 5 June 2017 came and went and no sale was effected. On 8 June 2017, the Sheriff issued a further notice to vacate which stipulated that vacation was to take place by 14 July 2017, failing which the writ of possession would be executed. 6. Yesterday, the defendant applied for the matter to be re-listed. Because of the time of the application, it could not be re-listed with the plaintiff present until 8.30 this morning. Mr Dimitriou, whom I granted leave to appear on behalf of the defendant, told me of various difficulties the defendant has had, including obtaining discharge figures from the plaintiff in order to discharge the mortgage, which he says he is in a position to do either later today or on Monday 17 July 2017. 7. Mr Rogers, who appears on behalf of the plaintiff, informed me, that the defendant has had several indulgences from this Court. This appears to be the case from the procedural chronology taken from JusticeLink, which is summarised in MFI 1. He submitted that on each occasion a last-minute application has been made to the Court and an assurance given that the mortgage will be paid out within a short period. Despite Mr Dimitriou's repeated assurances, the loan monies remain outstanding.

Consideration 1. As Mr Rogers has indicated, the execution of the writ of possession does not stop the mortgagor from paying out the mortgage and obtaining possession of the Security Property again from the mortgagee once the mortgage has been completely paid out. Indeed, as Mr Rogers has indicated, it is usually the case that mortgagees in possession put a property to auction in order to avoid any criticism being made that they have not obtained the best available price for the property. Thus, the risk of a quick sale is remote. Any material prejudice suffered by the defendant as a result of the execution of the writ can be repaired by the payment of the amount owing to the plaintiff. 2. In all the circumstances set out above, and having regard to the numerous indulgences that have been granted to the defendant on prior occasions by this Court, the application for a stay is refused.

Orders 1. For the reasons set out above, I make the following order: 1. Refuse the defendant's application for a stay of the writ of possession.

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