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[2025] NSWSC 1234
General information, not legal advice.
Supreme Court of NSW
2025-10-14
Cavanagh J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Barrington Winstanley Group Pty Ltd v Edmonds [2025] NSWSC 1234
Hearing dates: 14 October 2025
Date of orders: 14 October 2025
Decision date: 14 October 2025
Jurisdiction: Common Law
Before: Cavanagh J
Decision: (1) The enforcement of the writ of possession of property is stayed until 5pm on 21 October 2025 or further order of the Court.
(2) The defendants’ notice of motion is stood over for hearing before the Duty Judge until 21 October 2025 at 10am.
(3) The defendants are to serve any further evidence on which they intend to rely by 5pm on 15 October 2025.
(4) The plaintiff is to serve further evidence on which it intends to rely by 10am on 20 October 2025.
(5) Direct that the solicitors for the plaintiff inform the Sheriff of these orders.
Catchwords: PRACTICE AND PROCEDURE – application by defendants seeking a stay of a writ of execution – plaintiff not given sufficient opportunity to respond to application – temporary stay granted for one week
Legislation Cited: Nil
Cases Cited: Nil
Texts Cited: Nil
Category: Procedural rulings
Parties: Barrington Winstanley Group Pty Ltd (Plaintiff)
Sandra Edmonds (First Defendant)
David James Edmonds (Second Defendant)
Representation: Counsel:
M R Pesman SC (Plaintiff)
Solicitors:
Ark Legal (Plaintiff)
Murray Laws Pty Ltd (First and Second Defendant)
File Number(s): 2025/00083967
Publication restriction: Nil
This matter comes before me at 5pm on 14 October 2025 pursuant to an urgent application filed by the defendants, Sandra and David Edmonds. The defendants seek a stay of the writ of execution. It seems that at this stage the sheriff is scheduled to attend the property where they reside and the property which they own at 10am tomorrow.
On the hearing of the application Ms Shafizadeh appeared as agent for the solicitors for the defendants, that is, Murray Laws Pty Ltd. Mr Pesman SC appeared for the plaintiff.
The defendants proceed on a motion which has been filed today. In support of the application the defendants rely on an affidavit of Sandra Edmonds dated 14 October 2025 annexed to which are various documents including a notice of intention to appeal, a valuation, and the judgment of Faulkner J of 7 August 2025. The defendants also rely on written submissions which are in essence to the same effect as Ms Edmonds’ affidavit.
Mr Pesman was only instructed less than an hour before the hearing of the application. That is no doubt because the defendants chose to file their application and seek an urgent hearing only this afternoon. The plaintiff has not been given any opportunity to respond to the matter. Indeed, as I understand it, when the Registrar was approached, it was said by the defendants to be an ex parte matter. Be that as it may, Mr Pesman is here representing the plaintiff.
Mr Pesman explains that this is the culmination or result of lengthy litigation between the parties in various courts. It seems that the litigation has been hotly contested. On his instructions (not having been afforded the opportunity to put on evidence), there are three mortgages on the property. His client is the second mortgagee. According to the affidavit of Ms Edmonds there is a third mortgage to Murray Laws Pty Ltd who also happen to be the solicitors for the Edmonds.
The basis of the application for a stay is really threefold:
The defendants are not only the registered proprietors of the property and the persons who effected a mortgage with the plaintiff but they are now the tenants because, according to Ms Edmonds, Murray Laws Pty Ltd, her solicitor, has already obtained an order for possession of the property pursuant to its mortgage and subsequently entered into an oral agreement with the defendants to lease the premises to them. Ms Edmonds says that she is just an occupier of the premises and was not given proper notice of the proceedings as the occupier of the premises. As I understand it, she seeks to make the point that although the defendants were aware of the proceedings in their capacity as registered proprietors, they were not given the required Notice to Occupier. She thus says that the earlier orders made by Faulkner J should not have been made in these circumstances.
The defendants have filed a notice of intention to appeal and according to Ms Edmonds intend to pursue an appeal on various grounds such as a lack of jurisdiction and failure to give notice. However, no leave has been sought and despite the defendants being on notice of the writ of possession and the enforcement of it for some weeks, a notice of appeal has not been filed and they seemingly did nothing about seeking a stay of the orders until this afternoon when they sought to have this matter determined on an ex parte basis.
The defendants operate a farm. They are said to be in the middle of shearing season and, if the defendants are evicted tomorrow, the sheep will have to be killed, the breeding line will be terminated and the defendants will suffer significant loss and damage. On that basis the defendants say the proceedings should be stayed because the plaintiff will suffer no real prejudice as a result of a stay.
The problem with the application is that it has been brought at the eleventh hour in circumstances in which the plaintiff has been given no opportunity to respond to it. It must be that the documents relied upon by the defendants were prepared well before 4 o’clock this afternoon. In circumstances in which Mr Pesman says that many of the statements of fact made in the affidavit of Ms Edmonds are disputed, it is difficult to make any decision about the merits of the application for a stay.
Having said that, Mr Pesman appropriately conceded that the plaintiff has no interest in having the farm destroyed or animals being killed or suffering. At this stage there does not appear to be any real plan in place for the plaintiff to deal with the animals should the defendants be evicted from the property.
In those circumstances, after some discussion between the parties, they agreed that a short stay would be appropriate, the defendants say that a stay should be granted until after the shearing season, after the sheep can be sold and all those sorts of things. That might take up to four weeks.
That argument might be best put at another time bearing in mind the defendants’ failure to give the plaintiff any meaningful opportunity to deal with the application today.
In the circumstances I am prepared to grant a temporary stay until 5pm on 21 October 2025 or further order of the Court. Just to be clear, the effect of what I am doing is directing that the enforcement proceedings being taken by the plaintiff be stayed until next Tuesday and that the matter will be listed before the Duty Judge or some other judge on an urgent basis next Tuesday.
I make the following orders:
The enforcement of the writ of possession of property is stayed until 5pm on 21 October 2025 or further order of the Court.
The defendants’ notice of motion is stood over for hearing before the Duty Judge until 21 October 2025 at 10am.
The defendants are to serve any further evidence on which they intend to rely by 5pm on 15 October 2025.
The plaintiff is to serve further evidence on which it intends to rely by 10am on 20 October 2025.
Direct that the solicitors for the plaintiff inform the Sheriff of these orders.
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Barrington Winstanley Group Pty Ltd
Edmonds [2025] NSWSC 1234