GKQ Mortgages Pty Ltd v Ahmad Salim Mouhajar & ors [2011] NSWSC 918

GKQ Mortgages Pty Ltd v Ahmad Salim Mouhajar & ors [2011] NSWSC 918

The dealings on 28 February 2011 did not, in the events that had occurred by 10 June 2011, extinguish the plaintiff's entitlement to possession because payment of the additional amount was a precondition to the plaintiff foregoing that entitlement. However, those dealings gave rise to at least a seriously arguable case that the plaintiff's entitlement was limited to $236,500 plus the additional payment of $13,500, so that once the defendants undertook to pay the outstanding $8,500 immediately, the writ for possession should be stayed until further order.

Jurisdiction
Australia
Judgment Date
14 June 2011
Procedural Posture
Mortgage Possession Proceedings; Notice of Motion to Stay Execution of Writ for Possession / Equity Division Duty List, Ex Tempore Ruling on Stay of Writ for Possession
Outcome
The motion filed on 6 June 2011 was dismissed with costs on 10 June 2011; on 14 June 2011 the operation of the writ for possession issued on 16 March 2011 was stayed until further order upon undertakings by the first and second defendants.
Legal Topics
['judgment for Possession' 'writ for Possession' 'stay of Execution' 'mortgage Enforcement' 'settlement of Mortgage Debt']
['practice and Procedure' 'mortgages'] ['judgment for Possession' 'writ for Possession' 'stay of Execution' 'mortgage Enforcement' 'settlement of Mortgage Debt']

Case Brief

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Procedural Posture

Mortgage Possession Proceedings; Notice of Motion to Stay Execution of Writ for Possession / Equity Division Duty List, Ex Tempore Ruling on Stay of Writ for Possession

Legal Issues

  1. 1 ["Whether acceptance of the late payment of $236,500 extinguished the plaintiff's entitlement to possession under the consent orders." 'Whether failure to pay the additional amount of $13,500 left the plaintiff entitled to execute the writ for possession.' 'Whether payment or undertaking to pay the remaining $8,500 created a sufficient basis to stay the writ for possession until further order.']

Ratio Decidendi

The dealings on 28 February 2011 did not, in the events that had occurred by 10 June 2011, extinguish the plaintiff's entitlement to possession because payment of the additional amount was a precondition to the plaintiff foregoing that entitlement. However, those dealings gave rise to at least a seriously arguable case that the plaintiff's entitlement was limited to $236,500 plus the additional payment of $13,500, so that once the defendants undertook to pay the outstanding $8,500 immediately, the writ for possession should be stayed until further order.

Court Disposition

The motion filed on 6 June 2011 was dismissed with costs on 10 June 2011; on 14 June 2011 the operation of the writ for possession issued on 16 March 2011 was stayed until further order upon undertakings by the first and second defendants.

Orders

  • ['Motion filed on 6 June 2011 dismissed with costs.' "Upon the first and second defendants by their solicitor giving to the court the usual undertaking as to damages, and upon those defendants by their solicitor further undertaking to the court that they will forthwith pay by tendering to the plaintiff's solicitors...