Max Swalding Earthmoving Pty Ltd v Stellason [2013] NSWSC 1789

Max Swalding Earthmoving Pty Ltd v Stellason [2013] NSWSC 1789

The stay was refused because the application was made in the hour before execution without explanation despite prior notice, the Darlinghurst sale had been contracted after possession orders and without the Plaintiff's consent, settlement would not repay the full outstanding debt, and repayment depended on uncertain later refinancing or sale of the Paddington property with no obvious benefit to the Plaintiff.

Jurisdiction
Australia
Judgment Date
03 December 2013
Procedural Posture
Interlocutory Application in Mortgage Possession Proceedings / Ex Parte Application for a Stay of Execution of Writs of Possession
Outcome
The application for a stay of the execution of the writs of possession is refused.
Legal Topics
['possession of Land' 'judgment for Possession' 'stay of Execution' 'writs of Possession' 'mortgage Default']
['real Property' 'mortgages' 'civil Procedure'] ['possession of Land' 'judgment for Possession' 'stay of Execution' 'writs of Possession' 'mortgage Default']

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Procedural Posture

Interlocutory Application in Mortgage Possession Proceedings / Ex Parte Application for a Stay of Execution of Writs of Possession

Legal Issues

  1. 1 ['Whether execution of the writs of possession should be stayed where the application was brought shortly before execution and no explanation was given for the delay.' 'Whether a contract for sale of one mortgaged property justified a stay where the mortgagee had not consented to the sale and settlement would not repay the whole debt.' 'Whether proposed later refinancing or sale of the other property justified staying execution of the writs.']

Ratio Decidendi

The stay was refused because the application was made in the hour before execution without explanation despite prior notice, the Darlinghurst sale had been contracted after possession orders and without the Plaintiff's consent, settlement would not repay the full outstanding debt, and repayment depended on uncertain later refinancing or sale of the Paddington property with no obvious benefit to the Plaintiff.

Court Disposition

The application for a stay of the execution of the writs of possession is refused.

Orders

  • ['The application is refused.']