Catalyst Provisional Lending Pty Ltd v Dick-Telfar

Judgment

1. HIS HONOUR: On 14 February 2020 Johnson J made the following orders in these proceedings: 1. The defendants' notice of motion filed 4 September 2019 is dismissed. 2. The defendants are to pay the plaintiffs' costs of the defendants' notice of motion filed 4 September 2019. 3. Pursuant to Rule 13.1 Uniform Civil Procedure Rules 2005, summary judgment is given to the plaintiffs for possession of the whole of the land described in Folio Identifier 1X/1X/XX37 being the land situated and known as xx Prince Edward Street, Malabar in the State of New South Wales (the Malabar property). 4. The plaintiffs have leave to issue a writ of possession forthwith with respect to the Malabar property. 5. The defendants are to pay the plaintiffs' costs of the plaintiffs' notice of motion filed 17 September 2019.
2. By notice of motion filed on 16 March 2020 the defendants now move the Court for an order that the writ of possession issued to the plaintiffs on 19 February 2020 in respect of the property at xx Prince Edward Street, Malabar be stayed until further order of the Court. That application is supported by the affidavit of the second defendant sworn on the same day.
3. The application came before me today in the Duty List. Mr B Levet of counsel appeared for the defendants. Mr M W Young SC appeared for the plaintiffs. Mr Levet did not read the second defendant's affidavit to which I have just referred.
4. It is common ground that the plaintiffs have instructed the sheriff to recover possession of the property pursuant to their writ of possession tomorrow. Mr Levet informed the Court that no appeal against the decision of Johnson J has been filed although a draft notice of appeal has been prepared. Mr Levet indicated, quite properly in my opinion, that the proposed grounds of appeal, although arguable, are destined to fail.
5. In the circumstances, Mr Levet submits that I should exercise my discretion to stay the writ for a further period of two weeks in anticipation of the NSW Government passing further legislation or making regulations pursuant to current legislation that would avail his clients having regard to the current pandemic emergency affecting Australia.