[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
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ex tempore JUDGMENT (revised)
This matter came before me today as Duty Judge. The appellant seeks a stay relating to a judgment delivered earlier today by Dhanji J, who refused to grant a further stay which the appellant had previously obtained to prevent the execution of a writ of possession in respect of his property, which is situated in Troy St, Emu Plains.
I shall provide a broad outline of the history of the matter.
16 April 2024 - Plaintiff, as first mortgagee, sought a writ of possession of the then defendant's land and recovery of a mortgage debt in the sum then of $560,513.07.
25 June 2024 - Registrar made an order that the defendant give possession of the property to the plaintiff mortgagee and ordered the defendant to pay the plaintiff $569,646.93. The second mortgagee is Vivian Locke Capital Pty Ltd.
26 August 2024 - Orders made authorising the sheriff to enter the property, with the eviction scheduled for 1 November 2024 at 9:00am.
31 October 2024 - Registrar Shulka ordered stay of the writ of possession until 11 November 2024 and directed that any extension for a further stay should be made by the defendant filing a notice of motion and affidavit in support by 5:00pm on 1 November 2024.
11 November 2024 - Registrar Hedge directed that the defendant was to file and serve any further evidence regarding the defendant's stated intentions to refinance the two mortgages in support of an extension of the stay by 18 November 2024, and the plaintiff was to file any evidence too by that date. The matter was adjourned to 18 November and the writ of possession was stayed until 5:00pm on that day.
18 November 2024 - Registrar Hedge heard the matter. There was no appearance by the defendant and, noting that no further evidence had been provided, no further stay was granted. The defendant's notice of motion filed 31 October 2024 was otherwise dismissed.
13 December 2024 - The matter came before Coleman J in circumstances where the sheriff was to execute the writ of possession on 16 December 2024 at 10:00am. Coleman J ordered that the execution of the writ of possession be stayed until 19 December 2024, primarily because his Honour considered that even if the plaintiff took possession on 16 December 2024, it would not be able to take any steps to sell the property until January or February 2025. His Honour also told the defendant that he needed to progress his refinancing proposals. Both parties appeared on this occasion. Affidavits were read by both parties. Coleman J delivered ex tempore reasons for judgment, which I have reviewed, including the summary of the defendant's refinancing proposals. It is evident from the Court File that the defendant's plans to refinance the mortgages date back as far as April 2024. Coleman J listed the matter for hearing on 19 December 2024.
19 December 2024 - The matter came again before Coleman J. There was no appearance by the defendant. No further order was made and the Court indicated that the stay of the writ of possession would expire at 5:00pm on 19 December 2024. The transcript of the hearing, which I have reviewed, records the defendant having previously told Coleman J (presumably on 13 December 2024) that he was intending to retain a solicitor to assist him and also to refinance both mortgages, but no further evidence was provided to Coleman J on these matters.
9 January 2025 - At short notice, the matter came before Dhanji J as Common Law Duty Judge. The hearing commenced at 8:00am in circumstances where the defendant had said that the eviction was scheduled for 9:00am that day. Both parties appeared. The defendant sought an extension of the stay. His Honour delivered an ex tempore judgment, a copy of which was not available to me which is unsurprising given the timing of the hearing before me. No orders were made by Dhanji J as sought by the defendant.
On 9 January 2025, the defendant filed a notice of appeal, seeking a stay. His only appeal ground was that he had listed his house for sale and that he had no funds to move or live anywhere.
I was told that the eviction had taken place this morning and the appellant no longer had possession. The appellant filed an affidavit dated 9 January 2025 by himself, to which was attached a copy of an exclusive agency agreement between the defendant and Ray White (Nepean Group) which was signed yesterday, 8 January 2025. It grants an exclusive agency to that agent for the period 8 January 2025 to 8 April 2025, with an estimated sale price of the property between $1.2 million and $1.25 million. The appellant also said that he had retained a conveyancer. The affidavit also attached a medical certificate regarding an injury to his knee. He said that he also had several other medical ailments.
The notice of appeal is from Dhanji J's judgment dated 9 January 2025. As noted, the only stated ground of appeal is that the defendant has now arranged with a real estate agent to sell the property and that he has no funds to move and live elsewhere. The notice of appeal fails to identify any alleged error in Dhanji J's refusal to grant a further extension of the stay in circumstances where the earlier stay expired at 5:00pm on 19 December 2024.
The principles guiding this Court's discretion to grant a stay are well settled by the seminal decision of the Court in Alexander v Cambridge Credit Corp Ltd (Receivers Appointed) (1985) 2 NSWLR 685 at 693-695. In brief, the party seeking the stay carries the onus of persuading the Court that it should exercise its discretion in favour of a stay. There is no requirement to demonstrate special or exceptional circumstances, but the applicant must demonstrate why there is an appropriate case for a stay.
In exercising its discretion, the Court must weigh the competing rights of the parties and consider the balance of convenience. In some cases, it may be appropriate to impose conditions on the grant of a stay.
Furthermore, it is relevant to consider whether an appeal will be rendered nugatory if the appellant succeeds and a stay has not been granted. In addition, although it is generally inappropriate to speculate about the appellant's prospect of success, this does not prevent the Court from considering the specific terms of a stay which will fairly adjust the competing interests of the parties, and this may involve the need for a preliminary assessment about whether the appellant has an arguable case on the appeal.
Having regard to all of these matters, and the parties' submissions before me today (noting that the respondent opposed the application for a stay) I am not persuaded that the appellant has established a sufficient basis for the grant of a stay. Although I am empathetic to the appellant's hardship, I am particularly mindful of the following matters which outweigh that hardship:
1. More than six months has now lapsed since the plaintiff obtained a writ of possession of the land.
2. The appellant has had ample opportunity to obtain satisfactory refinance of the first mortgage, but has failed to do so.
3. The appellant's conduct of the proceedings includes his failure to appear either on 18 November 2024 or at the adjourned hearing before Coleman J on 19 December 2024, being the day on which the existing stay would expire at 5:00pm. He delayed several weeks thereafter before having the matter heard urgently by Dhanji J as Duty Judge earlier today.
4. I acknowledge that the appellant has now belatedly arranged for his property to be sold, but other than knowing that the exclusive agency agreement is for a three-month period commencing yesterday, the respondent has no indication if and when the property will be sold. It is notable that there is no intention to sell the property by auction and the agent has recommended sale by private treaty. Nor is there any certainty that the net proceeds of sale would be sufficient to discharge both mortgages and some charges relating to the property.
5. The appellant raised other matters in oral address none of which were supported by evidence.
6. Finally, and importantly, while acknowledging that the appellant is a litigant in person, no proper ground of appeal is identified in the notice of appeal and the Court is simply unable to determine whether or not he has an arguable case.
For all these reasons, the appellant's oral application for a stay is refused.
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Decision last updated: 10 January 2025