N & M Investments/Properties Pty Ltd v Yufei Bao [2019] NSWSC 1142

N & M Investments/Properties Pty Ltd v Yufei Bao [2019] NSWSC 1142

Because the defendant had promptly sought to challenge the default judgment and that motion was already listed for hearing, and because the Court could not conclude on the limited material that the proposed defence was hopeless, the interests of justice required a stay of execution of the writ of possession until the application to set aside the default judgment was resolved, despite potential prejudice to the plaintiff from delay.

Jurisdiction
Australia
Judgment Date
02 September 2019
Procedural Posture
Application to Stay Execution of a Writ of Possession Pending an Application to Set Aside Default Judgment for Possession / Amended Notice of Motion Determined Before the Hearing of the Defendant's Notice of Motion to Set Aside Default Judgment
Outcome
Execution of the writ of possession stayed; defendant awarded costs of the notice of motion.
Legal Topics
['stay of Execution of Writ of Possession' 'default Judgment' 'application to Set Aside Default Judgment' 'mortgage Possession' 'costs of Notice of Motion']
['civil Law' 'civil Procedure' 'property Law' 'mortgage and Secured Lending'] ['stay of Execution of Writ of Possession' 'default Judgment' 'application to Set Aside Default Judgment' 'mortgage Possession' 'costs of Notice of Motion']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application to Stay Execution of a Writ of Possession Pending an Application to Set Aside Default Judgment for Possession / Amended Notice of Motion Determined Before the Hearing of the Defendant's Notice of Motion to Set Aside Default Judgment

Legal Issues

  1. 1 ["Whether execution of the writ of possession should be stayed until resolution of the defendant's notice of motion to set aside default judgment." "Whether the defendant's proposed defence was so unarguable, hopeless or destined to fail that a stay should be refused." 'Whether prejudice to the plaintiff from delayed possession and delayed sale outweighed the interests of justice in preserving the position until the set aside application was heard.' 'Whether costs of the motion should follow the event.']

Ratio Decidendi

Because the defendant had promptly sought to challenge the default judgment and that motion was already listed for hearing, and because the Court could not conclude on the limited material that the proposed defence was hopeless, the interests of justice required a stay of execution of the writ of possession until the application to set aside the default judgment was resolved, despite potential prejudice to the plaintiff from delay.

Court Disposition

Execution of the writ of possession stayed; defendant awarded costs of the notice of motion.

Orders

  • ["Stay the execution of the writ of possession until the resolution of the defendant's notice of motion to set aside the default judgment." "The plaintiff is to pay the defendant's costs of and incidental to the notice of motion."]