La Trobe Financial Management Ltd v El Khouri [2019] NSWSC 1812

La Trobe Financial Management Ltd v El Khouri [2019] NSWSC 1812

The stay was refused because the mortgagor and those representing his estate had already had more than a reasonable opportunity to sell the property, repeated forbearance arrangements had not produced a sale, there was no real dispute that the plaintiff was entitled to recover its mortgage debt, and further extension of occupation and delay risked prejudice to the judgment creditor through delayed sale and a realistic potential shortfall.

Jurisdiction
Australia
Judgment Date
16 December 2019
Procedural Posture
Notice of Motion for Stay of Execution of Writ of Possession / Ex Tempore Judgment on Prayer 5 of the Notice of Motion
Outcome
Prayer 5 of the Notice of Motion refused; Notice of Motion otherwise dismissed.
Legal Topics
['stay of Writ of Possession' 'possession Proceedings' 'mortgage Default' 'forbearance Agreements' 'sale of Secured Property']
['civil Procedure' 'property Law' 'mortgage Enforcement'] ['stay of Writ of Possession' 'possession Proceedings' 'mortgage Default' 'forbearance Agreements' 'sale of Secured Property']

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Procedural Posture

Notice of Motion for Stay of Execution of Writ of Possession / Ex Tempore Judgment on Prayer 5 of the Notice of Motion

Legal Issues

  1. 1 ['Whether the Court should stay execution of the writ of possession until 30 April 2020 under section 135 of the Civil Procedure Act 2005.' 'Whether the applicants had already had a reasonable opportunity to sell the mortgaged property.' 'Whether further delay would prejudice the judgment creditor.']

Ratio Decidendi

The stay was refused because the mortgagor and those representing his estate had already had more than a reasonable opportunity to sell the property, repeated forbearance arrangements had not produced a sale, there was no real dispute that the plaintiff was entitled to recover its mortgage debt, and further extension of occupation and delay risked prejudice to the judgment creditor through delayed sale and a realistic potential shortfall.

Court Disposition

Prayer 5 of the Notice of Motion refused; Notice of Motion otherwise dismissed.

Orders

  • ['Refuse prayer 5 of the Notice of Motion.' 'The Notice of Motion is otherwise dismissed.']