Lava Limited v Avery [2009] NSWSC 177

Lava Limited v Avery [2009] NSWSC 177

Because the defendant withdrew her defence and cross-claim and did not oppose possession orders, the application was in substance for a stay of execution rather than an adjournment, and the adjournment was refused. Judgment for possession was granted on the evidence. A six-month stay of execution was justified in the interests of justice to allow the defendant to commence redemption proceedings concerning the second mortgage, with the plaintiff protected by the possession judgment and writ, and without a condition requiring immediate payment of interest because the defendant was presently unable to make repayments and the property appeared sufficient to cover the loan and accrued interest.

Jurisdiction
Australia
Judgment Date
18 March 2009
Procedural Posture
Possession Proceedings / Notice of Motion to Vacate Hearing; Judgment for Possession and Stay of Writ of Possession
Outcome
Judgment for the plaintiff for possession; leave to issue writ of possession granted; execution stayed for six months on conditions; cross-claim dismissed; security for costs released to the plaintiff; liberty to apply granted.
Legal Topics
['possession Proceedings' 'application for Adjournment' 'writ of Possession' 'stay of Execution' 'discharge of Mortgage']
['civil Procedure' 'real Property' 'mortgage Law'] ['possession Proceedings' 'application for Adjournment' 'writ of Possession' 'stay of Execution' 'discharge of Mortgage']

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Procedural Posture

Possession Proceedings / Notice of Motion to Vacate Hearing; Judgment for Possession and Stay of Writ of Possession

Legal Issues

  1. 1 ['Whether the hearing should be vacated or adjourned to allow the defendant to commence redemption proceedings concerning a second mortgage.' 'Whether judgment for possession and leave to issue a writ of possession should be granted where the defence and cross-claim were withdrawn and possession orders were not opposed.' 'Whether execution of the writ of possession should be stayed, and on what terms.']

Ratio Decidendi

Because the defendant withdrew her defence and cross-claim and did not oppose possession orders, the application was in substance for a stay of execution rather than an adjournment, and the adjournment was refused. Judgment for possession was granted on the evidence. A six-month stay of execution was justified in the interests of justice to allow the defendant to commence redemption proceedings concerning the second mortgage, with the plaintiff protected by the possession judgment and writ, and without a condition requiring immediate payment of interest because the defendant was presently unable to make repayments and the property appeared sufficient to cover the loan and accrued interest.

Court Disposition

Judgment for the plaintiff for possession; leave to issue writ of possession granted; execution stayed for six months on conditions; cross-claim dismissed; security for costs released to the plaintiff; liberty to apply granted.

Orders

  • ['There be judgment for the plaintiff as against the defendant for the possession of the whole of the land comprised in folio identifier 31/SP70153, being the property known as Apartment 901, Parbury Apartments, 1 Pottinger Street, Walsh Bay, New South Wales.' 'The plaintiff be given leave to issue a writ of...