Secure Funding Pty Ltd v Earley [2013] NSWSC 1368

Secure Funding Pty Ltd v Earley [2013] NSWSC 1368

Although the Defendants had no sufficient explanation for the late application, had failed to continue payments despite capacity to do so, and had not shown that suitable accommodation would likely become available within three months, the hardship to their disabled son meant it was not appropriate for the family to be evicted the next day. A short stay until 18 October 2013, conditional on weekly payments, was the fair course between the parties.

Jurisdiction
Australia
Judgment Date
18 September 2013
Procedural Posture
Application to Stay a Writ of Execution in Possession Proceedings / Interlocutory Application
Outcome
Execution of the writ stayed until 5.00pm on 18 October 2013, conditional on payments by the Defendants to the Plaintiff.
Legal Topics
['possession of Land' 'stay of Writ of Possession' 'hardship' 'discretionary Stay']
['real Property' 'civil Procedure'] ['possession of Land' 'stay of Writ of Possession' 'hardship' 'discretionary Stay']

Case Brief

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Procedural Posture

Application to Stay a Writ of Execution in Possession Proceedings / Interlocutory Application

Legal Issues

  1. 1 ['Whether execution of the writ should be stayed where the application was made the day before eviction and no satisfactory explanation for the delay was given.' "Whether the Defendants' disabled son's need for special accommodation justified a further stay despite non-payment since judgment and lack of evidence that suitable accommodation would become available."]

Ratio Decidendi

Although the Defendants had no sufficient explanation for the late application, had failed to continue payments despite capacity to do so, and had not shown that suitable accommodation would likely become available within three months, the hardship to their disabled son meant it was not appropriate for the family to be evicted the next day. A short stay until 18 October 2013, conditional on weekly payments, was the fair course between the parties.

Court Disposition

Execution of the writ stayed until 5.00pm on 18 October 2013, conditional on payments by the Defendants to the Plaintiff.

Orders

  • ['I stay execution of the writ until 5.00pm 18 October 2013.' 'The stay is conditional on payments of $600 being made by the Defendants to the Plaintiff on each of 23 September, 30 September, 7 October and 14 October 2013.']