Unity Funding Pty Ltd v Osman [2020] NSWSC 948

Unity Funding Pty Ltd v Osman [2020] NSWSC 948

The extended stay sought by the first defendant was refused because she had defaulted on the agreed conditional stay, the evidence did not establish that anticipated funds would be available by 30 December 2020, and no bankable proposal protected the plaintiff from the risk of reduced recovery. A short stay until 20 August 2020 was granted to permit orderly vacant possession because COVID-19 affected the defendant's ability to raise funds, the property was a family home with occupants including ill parents, and no particular disadvantage to the plaintiff from that limited stay was shown.

Jurisdiction
Australia
Judgment Date
23 July 2020
Procedural Posture
Equity Duty List; Land Law Application for Stay of Writ of Possession / First Defendant's Notice of Motion Filed on 14 July 2020 Seeking Stay of Writ of Possession After Orders Made on 13 March 2020
Outcome
Writ of possession stayed until 20 August 2020; first defendant's notice of motion otherwise dismissed with costs.
Legal Topics
['stay of Writ of Possession' 'equitable Mortgage' 'vacant Possession' 'enforcement of Judgment' 'costs']
['land Law' 'equity' 'mortgage Enforcement' 'civil Procedure'] ['stay of Writ of Possession' 'equitable Mortgage' 'vacant Possession' 'enforcement of Judgment' 'costs']

Case Brief

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Procedural Posture

Equity Duty List; Land Law Application for Stay of Writ of Possession / First Defendant's Notice of Motion Filed on 14 July 2020 Seeking Stay of Writ of Possession After Orders Made on 13 March 2020

Legal Issues

  1. 1 ['Whether the writ of possession should be stayed until 30 December 2020 or for a shorter period.' 'Whether the time for the first defendant to make the $89,000 payment and interest payments should effectively be extended despite non-compliance with the 13 March 2020 orders.' "Whether the first defendant's evidence showed a reliable or bankable basis for protecting the plaintiff while delaying enforcement."]

Ratio Decidendi

The extended stay sought by the first defendant was refused because she had defaulted on the agreed conditional stay, the evidence did not establish that anticipated funds would be available by 30 December 2020, and no bankable proposal protected the plaintiff from the risk of reduced recovery. A short stay until 20 August 2020 was granted to permit orderly vacant possession because COVID-19 affected the defendant's ability to raise funds, the property was a family home with occupants including ill parents, and no particular disadvantage to the plaintiff from that limited stay was shown.

Court Disposition

Writ of possession stayed until 20 August 2020; first defendant's notice of motion otherwise dismissed with costs.

Orders

  • ['Order that the writ of possession in respect of the property identified in order 2 made by the Court in these proceedings on 13 March 2020 be stayed until 20 August 2020.' "Order that the first defendant's notice of motion filed on 14 July 2020 be otherwise dismissed." "Order the first defendant to pay the...