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File Number(s): 2024/00442645

Judgment – ex tempore (revised from transcript)

1. HIS HONOUR: On 23 July 2026, I delivered my reasons for judgment in this matter: Blackbird First Mortgage Corporation Pty Ltd v Cam Engineering and Construction Pty Ltd [2026] NSWSC 876. I will assume familiarity with the reasons given for that judgment and adopt the defined terms that I used therein.

2. On that occasion, I directed the parties to produce short minutes of order which gave effect to my reasons. I took this course for two reasons. First, because the quantification of Blackbird's money claim in light of my reasons was somewhat complicated. The parties were best placed to perform that task; they have done so and have now agreed on a correct figure. Secondly, because the parties had foreshadowed at least the potential for there to be a residual dispute regarding costs, and the defendants had indicated a short stay of any order for possession might be sought. The defendants have now sought that stay.

3. The parties remain in dispute about both costs and the issue of a stay.

Costs

4. The plaintiff seeks an order that the defendants pay its costs of the proceedings on the ordinary basis as assessed or agreed. The defendants say that there should be no order as to costs, or alternatively, propose a number of costs orders which purport to differentiate between issues raised in the proceedings; namely, the Dobbs certificate issue and the default interest issue, respectively.

5. The Court's power to order costs is discretionary, and it retains the power to determine by whom, and on what basis costs are to be paid: s 98(1) of the Civil Procedure Act 2005 (NSW). However, pursuant to r 42.21 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), costs will ordinarily "follow the event".

6. In the present case, Blackbird has succeeded in obtaining the relief sought, save that the quantum of its money judgment is lower than that which it had claimed. Acknowledging this, I am nevertheless satisfied that Blackbird has succeeded in the relevant “event”.

7. The defendants point to the fact that Blackbird failed on the Dobbs certificate issue and was only partially successful in relation to the default interest issue. They say that this mixed result justifies a departure from the usual order contemplated by UCPR r 42.21, or, alternatively, the making of a costs order tailored to exclude the costs referable to those issues. While there is scope to approach the question of costs in that way, I do not consider it appropriate to do so in this case.

8. The arguments on which Blackbird failed were not sufficiently dominant or separable — at least from a costs perspective — to warrant such an approach. Although not ultimately successful, those arguments were reasonably maintained by Blackbird. Its failure in those arguments does not, in my view, warrant a departure from the usual approach that the successful party receives their costs of the proceedings.

Stay

9. It is now appropriate to turn to the question of whether the order for possession and the granting of leave to issue a writ of possession — which the parties agree flow from the reasons which I have given — should be stayed for a short period to enable a further attempt to be made by Mr Bateman to refinance.

10. An affidavit sworn by Mr Bateman was read in support of his claim for a brief stay. In his affidavit, Mr Bateman alluded to the attempts he is making — or proposes to make — to refinance what is now a relatively modest debt owed to Blackbird.

11. It is not clear why a number of the steps proposed in that affidavit have not already been taken. It is also difficult to reach any view as to the likelihood of those steps resulting in a successful refinance of the debt. Whilst I accept the debt is now relatively small, I know nothing of Mr Bateman's wider circumstances, or the way in which they might impact on his realistic ability to refinance that debt.

12. Nevertheless, the Brightwaters property is Mr Bateman and his wife's home. They have resided in it for almost 18 years. Against that background, I accept that at least some short period will be required for them to obtain alternate accommodation and relocate in the event that no refinance of a debt is possible.

13. The principles to be applied in determining whether or not orders for possession should be stayed are well known and were discussed in GE Personal Finance Pty Ltd v Smith [2006] NSWSC 889.

14. The three general bases for a stay which emerge from GE Personal Finance are:

15. First, where a defendant has indicated that the proceedings are to be defended. Clearly, that is not a relevant consideration here.

16. Second, where the defendant has indicated that the loan is to be refinanced (ordinarily, supported by evidence of the steps actually taken for the refinance). Here, the proposal of a refinance has been alluded to, although the evidence of steps taken in that regard is reasonably scant.

17. Third, where a defendant has indicated the property is to be sold. That is clearly not the case here.

18. In some circumstances, a stay may also be granted on the basis of identified hardship: GE Personal Finance at [21]. To the extent that Mr Bateman's affidavit alluded to any particular hardship, it is confined to the fact that the property is the home that he and his wife have lived in for many years. As I have noted, I accept that the need to relocate — should that be required — will take some short period of time.

19. Ultimately, the stay being sought by Mr Bateman is now relatively short in duration. The time that has elapsed since the publication of my earlier reasons means that Mr Bateman has had significant notice of the reality that an order for possession would be made.

20. The stay he seeks is only to 4pm on 4 September 2026. Having regard to the fact that — even if no refinance is ultimately sought or obtained — some period will be required to enable Mr Bateman and his wife to move out of the property, I consider it appropriate that any order for possession (and the issue of a writ of possession) be stayed until that time.

21. Accordingly, I make the following orders:

22. Judgment for the plaintiff against the first, second, third and fourth defendants in the amount of $84,070.99.

23. Order that the second defendant give possession of the land comprised in Lot XXX of Deposited Plan XXX otherwise known as XXX.

24. Grant leave to the plaintiff to issue a writ of possession in respect of the land comprised in Lot XXX of Deposited Plan XXX otherwise known as XXX.

25. The defendants to pay the plaintiff’s costs of the proceedings.

26. Orders 2 and 3 above are stayed until 4pm on 4 September 2026.

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