Perpetual Trustees Victoria Limited v Sheehan and Anor [No 2] [2003] NSWSC 917

Perpetual Trustees Victoria Limited v Sheehan and Anor [No 2] [2003] NSWSC 917

A continuation of the stay was justified because the defendants had an arguable challenge to the consent orders based on incapacity, disability and lack of legal advice, the Court retained a residual discretion to stay execution where just, the parties had already agreed to a stay until 31 October 2003, dispossession would render the defendants homeless and cause substantial hardship, and the challenge could be dealt with expeditiously by revised procedural orders. Payment conditions should not be imposed because, on the evidence, they would in practical terms have the same effect as refusing the stay.

Jurisdiction
Australia
Judgment Date
10 October 2003
Procedural Posture
Interlocutory Application to Extend or Continue a Stay of Consent Orders in Possession Proceedings / Notice of Motion Concerning Stay of Consent Orders Pending Determination of Defendants' Challenge to Those Orders
Outcome
Continuation of the stay of the judgment for possession and judgment debt beyond 31 October 2003 pending further order; plaintiff directed to bring in short minutes of order within 7 days.
Legal Topics
['stay of Judgment or Order' 'consent Orders' "mortgagee's Rights" 'hardship' 'discretionary Relief']
['practice and Procedure' 'mortgage Possession Proceedings'] ['stay of Judgment or Order' 'consent Orders' "mortgagee's Rights" 'hardship' 'discretionary Relief']

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

Interlocutory Application to Extend or Continue a Stay of Consent Orders in Possession Proceedings / Notice of Motion Concerning Stay of Consent Orders Pending Determination of Defendants' Challenge to Those Orders

Legal Issues

  1. 1 ['Whether the agreed date for execution of the consent orders, including judgment for possession and judgment debt, should be extended beyond 31 October 2003.' 'Whether any further stay should be conditional on payments by the defendants.' "Whether the defendants' challenge to the consent orders was sufficiently arguable and whether justice required a continuation of the stay."]

Ratio Decidendi

A continuation of the stay was justified because the defendants had an arguable challenge to the consent orders based on incapacity, disability and lack of legal advice, the Court retained a residual discretion to stay execution where just, the parties had already agreed to a stay until 31 October 2003, dispossession would render the defendants homeless and cause substantial hardship, and the challenge could be dealt with expeditiously by revised procedural orders. Payment conditions should not be imposed because, on the evidence, they would in practical terms have the same effect as refusing the stay.

Court Disposition

Continuation of the stay of the judgment for possession and judgment debt beyond 31 October 2003 pending further order; plaintiff directed to bring in short minutes of order within 7 days.

Orders

  • ['The stay of the orders made by the Court is to continue, involving the judgment for possession and judgment debt being stayed beyond 31 October 2003 pending any further order of the Court.' 'The plaintiff is directed to bring in short minutes of order within 7 days reflecting a revised program consistent with the...