Perpetual Nominees Limited v Salad Express Pty Limited [2013] NSWSC 2035

Perpetual Nominees Limited v Salad Express Pty Limited [2013] NSWSC 2035

The refinancing material showed only a possible, conditional and somewhat speculative prospect of settlement, so a further stay of execution was not justified; however, the interests of both sides were fairly accommodated by allowing the writ to lie in the office until the end of May on conditions including payment of interest in advance and liberty for the plaintiff to reschedule execution after that date.

Jurisdiction
Australia
Judgment Date
07 May 2013
Procedural Posture
Possession Proceedings; Application for Stay of Execution of Writ of Possession / Interlocutory Application
Outcome
Application for stay of execution of writ of possession refused, with the writ to lie in the office until the end of May on conditions.
Legal Topics
['stay of Execution' 'writ of Possession' 'refinancing Proposal' 'enforcement of Security']
['civil Procedure' 'real Property' 'secured Lending'] ['stay of Execution' 'writ of Possession' 'refinancing Proposal' 'enforcement of Security']

Case Brief

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Procedural Posture

Possession Proceedings; Application for Stay of Execution of Writ of Possession / Interlocutory Application

Legal Issues

  1. 1 ["Whether execution of the writ of possession should be stayed in light of the defendants' refinancing proposal." "Whether the refinancing proposal was sufficiently certain to justify delaying the plaintiff's enforcement of its security."]

Ratio Decidendi

The refinancing material showed only a possible, conditional and somewhat speculative prospect of settlement, so a further stay of execution was not justified; however, the interests of both sides were fairly accommodated by allowing the writ to lie in the office until the end of May on conditions including payment of interest in advance and liberty for the plaintiff to reschedule execution after that date.

Court Disposition

Application for stay of execution of writ of possession refused, with the writ to lie in the office until the end of May on conditions.

Orders

  • ['Upon the defendant making payment of interest as accrued for the months May 2013 and June 2013 to the plaintiff within seven days of 7 May 2013, orders 1, 2 and 3 in the document signed by the parties were made.' 'The writ was to lie in the office until the end of May.' 'The plaintiff was at liberty to re-schedule...