PYRLAKIS v PERPETUAL TRUSTEE COMPANY LTD (ACN 000 001 007) [1993] NSWCA 219

PYRLAKIS v PERPETUAL TRUSTEE COMPANY LTD (ACN 000 001 007)

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

HANDLEY JA 3 May 1993

[1993] NSWCA 219

Handley JA. In this matter Mr Gye for the claimant has sought a stay of execution pending the hearing of the appeal. The appellants are the registered proprietors of the subject property and they raised money on mortgage for the benefit of Becker Developments Pty Ltd which is no longer trading and probably is in liquidation. Default has been made in payment of amounts due under the mortgage and proceedings to recover possession of the property were heard by Allen J in the Common Law Division. His Honour found in favour of the plaintiff, Perpetual Trustee Company Ltd, and entered judgment for possession and made other orders.

Mr and Mrs Pyrlakis have appealed and seek a stay of execution on the order for possession pending the hearing of the appeal. The position, on the affidavit of Vacilius Pyrlakis is that the debt under the security is approximately $300,000 and she has deposed to a belief that the market value of the property at the present time is approximately $240,000. She said that the amount secured exceeds the value of the property but no prejudice would be suffered by Perpetual Trustee Company if the judgment for possession is stayed.

However, in my view this overlooks the fact that the debt will increase and the likely deficit, if the appeal ultimately fails, will be greater than it is at present.

An affidavit filed this morning by Robert Andrew Smith states that no payments under the mortgage have been received since November 1991. There is no evidence as to the rate of interest under the mortgage but it is clear that a stay would expose the respondent to the risk of fluctuations in the market value of the security and in addition the debt would continue to increase and the likely deficit would continue to grow.

There is no evidence of any offer by the appellants to make any payments in the meantime to prevent the debt increasing and there is no evidence as to their means apart from their interest in the equity in this property which at the present time is valueless. In the circumstances it seems to me that no case has been made out to displace the prima facie right of Perpetual Trustee Company, as the party with a judgment in its favour, to enforce that judgment.

In the circumstances the application for a stay of execution fails on the present evidence and should be dismissed with costs.

The appellants will, of course, be entitled to apply again for a stay of execution on additional material if so advised. There is also before the Court a notice of motion by Perpetual Trustee Company for an extension of time to file a cross-appeal joining Francis Wall as a cross-respondent in the proceedings. The cross-appeal is out of time but subject to protection in the matter of costs, no opposition is offered to the Court curing the procedural default. I order that the time for filing a cross-appeal from the judgment of Allen J, at the suit of Perpetual

2 UNREPORTED JUDGMENTS

Trustee Company, be extended until Friday 7 May. I order that the claimant, Perpetual Trustee Company, pay the costs of Francis Wall of the motion.

In addition directions were sought relating to the hearing of the cross-appeal, in particular, that it be heard separately and subsequently to the hearing of the appeal and in the meantime be stood over generally. At the present time there is not enough information before the Court to enable an assessment to be made of the appropriateness of these directions. It is also not clear that the parties have exhausted the negotiation process and been unable to reach agreement on those matters. The Court would encourage the cross-appellant and cross-respondent to come to a reasonable arrangement to minimise the costs of the cross-appeal. If this matter can be the subject of agreement, a consent order can be filed at the Registry. However, there is not enough material before the Court to enable directions about the hearing of the cross-appeal to be given with any confidence at this stage. I therefore refuse to make those directions.

Orders accordingly.