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[2025] NSWCA 251
procedural. The applicants were ordered within 7 days to respond to, and to the extent appropriate produce documents under, the respondent’s notice to produce concerning their liability to Murray Laws. On the...
4 cited instruments linked from this judgment.
The Court of Appeal temporarily delayed the respondent’s taking possession of the Edmondses’ farm. The main reason was their undertaking to pay $850,000 into Court within 21 days. If they did not pay, they agreed to give up possession and allow any money already paid into Court to be released to the respondent. The Court did not decide whether the proposed appeal ground was arguable. It also required documents about the applicants’ liability to Murray Laws and set the matter down for further directions.
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2,453 words · generated 06/10/2026
Free JA dealt with an urgent application to stop execution of a possession judgment and writ. The writ was due to be executed at 11.30 am on 18 November 2025. The applicants, Sandra and David Edmonds, lived on and operated a sheep farm at 74 Dumaresq Road, Saumarez Ponds. The judgment records that the property held more than 1,500 superfine Merino breeding sheep and that the breeding programme was connected with accreditation requirements for ClipCare and Reda Wool enterprises ([1]).
The respondent, Barrington Winstanley Group Pty Ltd (BWG), had obtained a possession judgment on 6 August 2025. That judgment followed a mortgage granted on 30 August 2024 and an unpaid debt described in this judgment as just over $650,000. The first-instance judge, Faulkner J, struck out the defence then relied on and was satisfied that the applicants had no reasonable defence ([2]). Free JA recounts this history as context. The Court of Appeal application concerned temporary protection from execution, not a final determination of the underlying mortgage or possession dispute.
This was not the applicants’ first attempt to delay execution. A stay application in the Common Law Division had most recently been dismissed by Walton J on 7 November 2025 ([3]). The applicants told Free JA that they had filed an application for leave to appeal on 6 November, together with appeal materials. The judge said it was unclear whether the material had in fact been effectively filed on that date. A white folder, including a draft notice of appeal and summary of argument, was filed on 17 November, and it appeared at the hearing that it had not yet been served ([7]-[8]).
The applicants said immediate execution would seriously disrupt their farm. The claimed effects included destruction of a 30-year breeding programme, loss of breeding sheep, loss of stated accreditations, missing the February premium wool sale window, and losing planted fodder crops ([9]). The judge also noted the respondent’s acceptance that the applicants would suffer prejudice, while recording the respondent’s offer to facilitate an orderly departure after taking possession ([12]). But the practical arrangements for such a departure were uncertain. Free JA regarded that uncertainty, particularly in light of the number of animals and the handling or relocation issues, as a significant consideration ([13]).
The respondent’s competing concern was financial. It was concerned that its ability to recover might be affected if its mortgage entitlement were not upheld, particularly given uncertainty about the applicants’ growing debt to Murray Laws and the stated compound interest rate ([15]). The Court directed the applicants to answer a previously served notice to produce concerning their liability to Murray Laws ([16]).
The central development was the applicants’ undertaking to pay $850,000 into Court within 21 days. If they failed to pay, they undertook to deliver up possession and agree to release to the respondent any amount they had paid into Court ([23]-[29]). Free JA granted a 22-day stay, running from 18 November, and stood the motion over for directions on 10 December 2025 ([28]-[30]).
The decision turned on the balance between immediate practical harm to the applicants and the respondent’s interest in enforcing its possession judgment and protecting recovery of the debt. Free JA did not treat the application as a final adjudication of either side’s underlying legal position.
On the applicants’ side, the judge recorded that execution risked substantial disruption to a working farm with a large flock, animals in lambing season, an established breeding programme, and claimed business accreditations and commercial relationships ([9]-[13]). A practical concern was that no clear plan had been put in place for an orderly exit if possession changed hands that morning. That uncertainty mattered in the circumstances because moving or handling a large number of animals was not a simple or assured process ([13]).
On BWG’s side, the concern was not merely delay in obtaining possession. The respondent submitted that if its mortgage were found invalid, it might be an unsecured creditor. It also raised concern that debt owed to Murray Laws could grow and consume equity in the property, reducing the respondent’s prospect of recovery ([15]). The Court responded in part by ordering production of information about the applicants’ liability to Murray Laws ([16], [30]).
The undertaking changed the balance. The applicants initially proposed $650,000. BWG argued that the debt, interest and costs exceeded that figure by hundreds of thousands of dollars. The amount was not precisely established at the hearing, which the judge said was not a criticism of BWG in the urgent circumstances. The applicants then increased their undertaking to $850,000 ([24]-[25]). Free JA considered that amount a “very considerable measure of protection” ([26]).
The undertaking also had a defined consequence for default. If the applicants did not pay within 21 days, the respondent could take the benefit of any lesser amount already paid and the applicants would deliver up possession immediately after that period ([27], [29]). The judge explained the stay as a short interval in which payment could be made, rather than an open-ended suspension of possession.
The proposed appeal ground did not decide the application. It concerned whether the respondent’s mortgage had been submitted for registration when the applicants were bankrupt and whether a later setting aside of the sequestration order could cure the alleged defect ([20]). BWG disputed both the facts and the legal consequences, and raised whether the argument and relevant evidence had been properly advanced below ([21]). Free JA noted that the suggested ground had “significant weaknesses”, but expressly said it was unnecessary to decide whether it was arguable or strongly arguable ([22]). The undertaking was decisive ([23]).
The judgment therefore should be read narrowly. It records an urgent discretionary ruling made on specific facts, especially the imminent execution, the practical risks to the farm, uncertainty about an orderly exit, and the substantial payment undertaking. It does not decide the merits of the appeal, the validity of the mortgage, or the ultimate entitlement to possession.
This judgment does not purport to change the law governing stays pending appeal. It is an ex tempore interlocutory decision applying the Court’s discretion to an urgent application. Free JA says that in an application of this kind it is appropriate to consider whether arguable grounds of appeal have been identified ([18]). But the judgment does not set out a comprehensive legal test, or decide that arguability is irrelevant to stay applications generally.
Before the decision, the possession judgment remained operative, and execution was scheduled for 18 November. A prior stay application had been refused by Walton J on 7 November, on the understanding that no application for leave to appeal had been filed and the time for an appeal had passed. The applicants disputed that understanding, saying that they had filed appeal material on 6 November. Free JA did not resolve the filing issue, describing the effective filing date as unclear ([6]-[8]).
After the decision, execution was stayed for 22 days, subject to the applicants’ undertaking. The Court also ordered a response to the notice to produce within seven days and required material filed on 17 November to be filed and served forthwith ([30]). The orders did not dispose of the appeal or the motion. The motion was stood over for directions on 10 December ([30]).
The judgment’s procedural significance is therefore tied to the way the Court dealt with competing prejudice through a short, conditional arrangement. The payment undertaking protected the respondent during the temporary delay, while the default terms addressed what was to happen if payment was not made. The Court’s approach in this case should not be converted into a general proposition that a particular sum or form of undertaking will be sufficient in other disputes. The judgment makes its assessment in the specific circumstances before Free JA.
The history recounted in the judgment includes earlier proceedings and judgments, including Barrington Winstanley Group Pty Ltd v Edmonds [2022] NSWSC 531 and Edmonds v Barrington Winstanley Group Pty Ltd [2023] NSWCA 166 ([4], reproducing the history compiled by Adams J). In this decision, those matters are recounted as procedural background. Free JA does not analyse or apply their reasoning to establish a new proposition.
At [13], Free JA observed: “There is no certainty about precisely how an orderly exit from the property would proceed if possession was to transfer to the respondent today.” In plain English, although BWG was prepared to facilitate an exit, the Court did not have a clear, settled plan for moving the applicants and their large flock immediately. The judge regarded that uncertainty as important, including because of animal handling and relocation issues.
At [16], the judge directed the applicants to answer a notice to produce concerning their liability to Murray Laws. This addressed the respondent’s concern that the debt to Murray Laws could grow and affect the equity available to meet BWG’s claim. The order required a response and production only “to the extent appropriate”; it was not a finding about the amount or validity of the Murray Laws debt.
At [22], Free JA said the proposed appeal ground had “significant weaknesses” as observed by the respondent, but that it was unnecessary to resolve whether the ground was arguable or strongly arguable. In plain English, the Court did not endorse the appeal argument or decide that it had merit. Nor did it reject it. The question was left open because the payment undertaking was enough to decide the temporary stay application.
At [23], the judge called the undertaking the “decisive consideration”. The applicants promised to pay $850,000 into Court within 21 days, subject to the stated conditions. This passage is the clearest explanation of why the stay was granted.
At [26]-[27], the judge explained the protection BWG would receive and the consequence of default. If the applicants paid the $850,000, it would provide complete or almost complete security for the amount owing, in the Court’s assessment. If they did not pay, the undertaking provided for delivery up of the property and release of any amount already paid. The decision thus linked the temporary delay to both a substantial payment obligation and a stated consequence for non-payment.
The judgment is most directly relevant as an example of an urgent stay application where execution is imminent and the court is asked to weigh immediate practical prejudice against the judgment creditor’s interests. Here, the applicants described a rural property with a large flock, a breeding programme, seasonal lambing, claimed accreditation consequences, and no settled plan for an orderly exit that morning ([9]-[13]).
A second relevant feature was the existence of a substantial concern about preserving the respondent’s ability to recover money during the delay. BWG pointed to uncertainty about the applicants’ liability to another creditor, Murray Laws, and the possibility that this debt could affect the equity available to satisfy BWG’s claim ([15]-[16]). The production order formed part of the procedural response to that concern.
A third, and expressly decisive, feature was a concrete undertaking offering substantial security, with a defined period and a consequence if the undertaking was not fulfilled ([23]-[29]). The undertaking was not simply a promise to pursue an appeal. It specified an amount, a payment deadline, what the payment would be held to abide, and what would happen upon default.
These features describe the factual setting in which Free JA made this order. The judgment does not establish that any one of them, alone or in combination, automatically warrants a stay. Nor does it identify a minimum amount for an undertaking or a general rule that a court need not consider appeal arguability. It expressly leaves the arguability issue unresolved on the basis that the undertaking was decisive in this application ([22]-[23]).
The supplied judgment contains no account of any later court considering or applying Edmonds v Barrington Winstanley Group Pty Ltd [2025] NSWCA 251. It was decided on 20 November 2025, and the text supplied for analysis records orders made two days earlier. No later treatment can be established from this judgment alone.
The judgment itself recounts earlier proceedings involving the same parties, including the original debt judgment and a prior appeal ([4]). Those are part of the procedural history, not later treatment of this 2025 ruling. Free JA did not rely on them to state a general rule about undertakings or stays.
For research purposes, the decision’s stated reasoning is best described by its own limits: it granted a temporary stay, relied decisively on the applicants’ undertaking, and did not decide the appeal ground’s arguability. Any assertion that later courts have adopted, distinguished, or rejected its approach would require sources beyond the judgment provided here.
Several matters were left open. First, the Court did not determine whether an application for leave to appeal had been effectively filed on 6 November or whether the 17 November filing was the first effective filing ([7]-[8]). If the later date was the first filing, BWG submitted that an extension of time would also be required. The stay decision did not resolve that procedural question.
Second, the Court did not decide whether the proposed appeal ground about the registration of the mortgage during the applicants’ alleged bankruptcy was arguable. The applicants’ position and BWG’s objections are recorded at [20]-[21], but the Court expressly declined to determine the issue at [22]. The judgment therefore supplies no appellate ruling on the mortgage’s validity or the effect of the alleged bankruptcy circumstances.
Third, the amount actually owed to BWG was not precisely established at the hearing. BWG submitted that the total, including interest and costs, exceeded $650,000 by some hundreds of thousands of dollars. The applicants responded with the $850,000 undertaking, which the judge considered substantial protection ([25]-[26]). The ruling did not finally determine the debt balance.
Fourth, the amount and basis of the applicants’ liability to Murray Laws remained uncertain. The notice to produce was directed to documents about that liability, and the applicants were ordered to respond within seven days ([16], [30]). The judgment did not decide the validity, priority or ultimate amount of the competing security interests.
Finally, the 22-day order was temporary. The motion was stood over for directions on 10 December 2025, and the judgment does not state what happened at that later listing ([28], [30]). The longer-term position concerning possession, the appeal, the undertaking, and the parties’ competing claims cannot be determined from this text.
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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: Edmonds v Barrington Winstanley Group Pty Ltd [2025] NSWCA 251
Hearing dates: 18 November 2025
Date of orders: 18 November 2025
Decision date: 20 November 2025
Before: Free JA
Decision: (1) The applicants, within 7 days, are to respond to, and to the extent appropriate produce in accordance with, the notice to produce previously served seeking documents relating to the liability of the applicants to Murray Laws Pty Ltd.
(2) Upon the undertaking given by the applicants, stay of execution of writ of possession and judgment of possession for 22 days from today 18 November 2025.
(3) Costs to date of the notice of motion filed 17 November 2025 will be costs in the appeal.
(4) Material filed on 17 November 2025 is required to be filed and served on the respondents forthwith.
(5) The notice of motion filed on 17 November 2025 is stood over for directions before the Registrar on 10 December 2025.
Catchwords: APPEALS — procedure — stay pending appeal — urgent application for stay of execution upon judgment for possession and writ of possession — stay previously refused on the basis no application for leave to appeal filed — timing of effective filing unclear — prejudice established — undertaking by applicants to pay money into Court in satisfaction of respondents’ claim within 21 days — undertaking decisive —temporary stay granted
Category: Procedural rulings
Parties: Sandra Henri Edmonds (First applicant)
David James Edmonds (Second applicant)
Barrington Winstanley Group Pty Ltd (Respondent)
Representation: Counsel:
S Burchett (Applicants)
M Pesman SC (Respondent)
Solicitors:
Leonardus Smits (Applicants)
Ark Legal (Respondent)
File Number(s): 2025/335127
FREE JA: This is an urgent application for a stay of the execution upon a judgment for possession and writ of possession. The writ of possession is due to be executed at 11.30am today, being Tuesday 18 November 2025. The application was listed for hearing before me at 9.30am, and only notified to the respondent late yesterday. The applicants, Sandra Edmonds and David Edmonds, are the registered proprietors and occupiers of a residence and rural property at 74 Dumaresq Road, Saumarez Ponds near Armidale. The applicants operate the property as a sheep farm. The property is stocked with over 1,500 superfine merino breeding sheep. There is a breeding program which needs to operate to certain standards in order to satisfy the requirements for accreditation under what are called the ClipCare and Reda Wool enterprises.
The prospect of execution of judgment for possession has been in place since 6 August 2025, when Justice Faulkner gave judgment in favour of the respondent for possession of the property. The respondent was enforcing its rights as a mortgagee pursuant to a mortgage granted on 30 August 2024 and an unpaid debt of just over $650,000. Judgment was issued after Justice Faulkner struck out the defence that was then being relied upon by the applicants in their capacity as defendants to the proceedings at first instance. Justice Faulkner was satisfied that the applicants had no reasonable defence.
Although this is the first application for a stay in the Court of Appeal, this is the latest in a number of hearings concerning applications for a stay of execution. The most recent hearing in the Common Law Division was heard and dismissed by Justice Walton on 7 November 2025.
In a judgment delivered on that day, his Honour reproduced at paragraph 4 a helpful history of proceedings which had been compiled by Justice Adams in an earlier unreported judgment on 21 October 2025:
[1] … On 6 August 2025, Faulkner J made orders, inter alia, that the plaintiff, Barrington Winstanley Group Pty Ltd (“BWG”), have possession of property known as 74 Dumaresq Road, Saumarez Ponds (“the property”), which is situated halfway between Glen Innes and Tamworth.
[2] The applicants, Sandra and David Edmonds (“the Edmondses”), who were the first and second defendants before Faulkner J, were debtors of the plaintiff, and their debt was secured over that property with a mortgage.
[3] In the proceedings before Faulkner J, the third defendant was the Legal Aid Commission of NSW, the fourth defendant was Ecosse Bare Fund 12 Pty Ltd, and the fifth defendant was Murray Laws Pty Ltd. The fifth defendant is a law firm and Mr Smits, from that law firm, acts for the first and second defendant, and appeared for them before Faulkner J.
[4] Following the orders made by Faulkner J on 6 August 2025, a writ of possession was issued on 25 August 2025. On 27 August 2025, a notice to vacate was posted to the occupier by the New South Wales Sheriff’s Office to that property.
[5] On 4 September 2025, the BWG’s solicitor sent an email to Mr Smits of Murray Laws also giving notice of the Sheriff’s scheduled eviction on 15 October 2025. As noted, Mr Smits represented both of the Edmonds as at that date.
[6] The day before the scheduled eviction on 15 October 2024, Mr and Mrs Edmonds made an urgent application to Cavanagh J as Duty Judge at about 5:00pm seeking a stay of the execution of the writ of possession, which was scheduled at 10:00am the following morning. They did so ex parte. Mr Pesman SC, who appeared for BWG, was able to appear at short notice, but without any meaningful instructions given the lack of notice.
[7] As Cavanagh J observed, the basis for the application for a stay at that time was threefold.
[8] First, although the Edmondses are the registered proprietors of the property, Murray Laws has a mortgage over it and, apparently, has already obtained possession of it. There was, apparently, an agreement that the Edmondses would then lease the premises back from Murray Laws. Mrs Edmonds claimed before Cavanagh J that although she and her husband were aware of the proceedings in their capacity as registered proprietors, they were not given notice in their capacity as tenants.
[9] I pause to note that this is a somewhat unusual feature of this case. The Edmondses claim to be both tenants and registered proprietors of the property and their own solicitor, who has been acting for them and was the fifth defendant before Faulkner J, claims to currently be the mortgagee in possession of the property.
[10] The second basis for the stay put to Cavanagh J was that the Edmondses have filed a notice of intention to appeal and are currently attempting to seek legal representation to appeal the decision of Faulkner J.
[11] Thirdly, the property is a farm, and in the middle of shearing and lambing season. Mrs Edmonds claimed that if she and her husband were evicted, they would have to kill the sheep, a breeding line would be terminated, and they would suffer significant loss and damage.
[12] Given the lateness of the application brought before Cavanagh J, his Honour was left with little option but to grant a temporary stay of the execution of the writ of possession until 5:00pm today or a further order of the Court.
[13] It is in that context that the application comes before me today for hearing. Mr Pesman SC again appeared for BWG and Mr Moore of counsel appeared for the Edmondses instructed by Ms Shafizadeh, who appeared as agent for Murray Laws who are still the solicitor on the record.
[14] The applicants relied on two affidavits of Mrs Edmonds sworn on 14 and 15 October 2025 with extensive annexures and exhibits. On behalf of BWG, an affidavit of Kelwyn Barrington Hough sworn on 20 October 2025 was read. I have taken the following procedural history from that affidavit.
[15] It should be noted, at the outset, that throughout the long history of these proceedings Mr and Mrs Edmonds have made a number of allegations of fraud and criminal conduct not only against BWG, but also numerous other persons and entities. It is not necessary to go through those allegations for the purpose of these reasons.
[16] The debt owed by the Edmondses to BWG started out as an amount of only $240,520. On 20 May 2022, Darke J entered judgment against Mr and Mrs Edmonds for that debt, which, by then, was $801,116 approximately, including interest plus costs: Barrington Winstanley Group Pty Ltd v Edmonds [2022] NSWSC 531.
[17] On 3 June 2022, a bankruptcy notice was issued against the Edmondses and served between 6 and 11 June 2022.
[18] On 30 August 2022, an application by the Edmondses to set aside the bankruptcy notice was dismissed with costs by Registrar Morgan at the Federal Circuit and Family Court of Australia.
[19] On 2 September 2022, relying on Darke J’s judgment debt and other assessed and fixed costs orders, BWG presented a creditor’s petition against the Edmondses in the Federal Circuit and Family Court of Australia.
[20] It was from around late October or early November 2022 that Mr Smits from Murray Laws began representing the Edmondses in the creditor’s possession and other related proceedings.
[21] On 24 July 2023, the Court of Appeal dismissed the Edmondses’ appeal against Darke J’s orders: Edmonds v Barrington Winstanley Group Pty Ltd [2023] NSWCA 166.
[22] On 30 August 2023, Laing J in the Federal Circuit and Family Court of Australia dismissed the Edmondses’ application to review Registrar Morgan’s decision: Edmonds v Barrington Winstanley Group Pty Ltd [2023] FedCFamC2G 785.
[23] On 27 September 2023, Senior Deputy Registrar Hedge in this Court dismissed an ex parte application by the Edmondses that the judgment debt be paid by instalments.
[24] On 23 October 2023, Nixon J dismissed an appeal from that decision of Registrar Hedge with costs.
[25] On 26 July 2024, Perry J dismissed the Edmondses’ appeal from Laing J’s decision in the Federal Court: Edmonds v Barrington Winstanley Group Pty Ltd [2024] FCA 821.
[26] The creditor’s petition meanwhile was adjourned to 16 August 2024. At the time of that petition, the Edmondses owed approximately $1.5 to $1.6 million.
[27] Settlement discussions were conducted in relation to the creditor’s petition and sealed consent orders were made by Riley J on 16 August 2024. In those sealed consent orders, the Edmondses agreed to pay the reduced amount of $1.1 million in full settlement in two instalments. Significantly, the Edmondses agreed to grant BWG a mortgage over the property in priority to that lodged by Murray Laws as security for the payments.
[28] It would appear that the sequestration orders were made on the basis that they would be set aside when the PEXA settlement occurred. Apparently, due to some timing difficulties with the settlement, the Edmondses were technically bankrupt for a few hours that day.
[29] After the settlement of the proceedings, the Edmondses and Murray Laws attempted to lodge various dealings to obstruct the registration of the settlement documents, including the BWG mortgage, and also attempted to use the farm debt mediation scheme to stop enforcement of that mortgage.
[30] Against that regrettable history of the debt going back to what appears to be 2018, BWG brought proceedings in this division for possession of the property by statement of claim on 3 March 2025.
[31] Two notices of motion with a number of separate orders sought came before Faulkner J on 6 August 2025 in the possession list and his Honour delivered a number of judgments that day. Significantly, his Honour was satisfied that the Edmondses had no reasonable defence and entered judgment for BWG for possession of the land. I note that in the motions before Faulkner J that day, Mr Smits appeared for the first and second defendants whilst being the fifth defendant, despite his Honour expressing significant disquiet about that.
[32] It is not necessary to go through his Honour’s judgment for the purpose of these reasons. However, I note that at [20] and [21] his Honour said this:
[20] First, the nature of the claim made by the Plaintiff, as I have indicated, is one capable of ready and definite proof and the material clearly establishes the right for which the Plaintiff contends. If there were to be an issue in this case about whether or not the Plaintiff is entitled to an order for possession it really is a matter for the First and Second Defendants or, one could imagine in certain circumstances, the Fifth Defendant, to articulate a position which vitiates the Plaintiff’s position.
[21] As I have indicated, the Plaintiff has tried twice by formal pleadings and once in Court today to articulate the ‘real issues’ and has not been capable of doing so. It is not the case where, listening to carefully, one can see a broad concept capable of undermining the indefeasibility of title which the Plaintiff has for its Mortgage under s 42 of the Real Property Act 1900. Having read both Cross-Claim and listened to Mr Smits today, the First, Second and Fifth Defendants’ position remains incomprehensible. For that reason, I consider that merely striking out the Defences and ordering the Defendants to file further Defences will be an exercise that in all likelihood will be futile. As I say, there have been a number of opportunities to plead and those opportunities have not been taken.
As a number of judges who have dealt with this matter have already observed, a highly curious feature is that the solicitor on the record for the applicants is Mr Smits of Murray Laws Pty Ltd. Murray Laws Pty Ltd was, itself, a party to the proceedings below and is the third applicant on the application for leave to appeal, at least as currently framed. It is also apparently in possession of the property pursuant to a security previously granted to it, although it has leased the property to the applicants. It is owed a large amount of money by the applicants secured against the property. The respondent’s security as mortgagee, however, takes precedence over the security interests of Murray Laws Pty Ltd.
When the matter came before Justice Walton on 7 November 2025, a temporary stay was in place. One purpose of that temporary stay had been to enable the applicants to regularise the position in terms of an appeal from the judgment of Justice Faulkner on the basis that, in order to justify the continuation of the stay in support of an appeal, the applicants needed to demonstrate that an appeal was on foot and that arguable grounds of appeal had been advanced. On 7 November 2025, the applicants were represented by an agent, Mr Choy, rather than their usual solicitor or agent. Mr Choy did not advise the Court that an application for leave to appeal had been filed and the matter proceeded before Walton J on the basis that no application for leave to appeal had been filed and the time for bringing an appeal had passed. His Honour declined to grant any stay.
The applicants submit that the true position was that an application for leave to appeal had, in fact, been filed on 6 November 2025 together with the white book, draft notice of appeal and summary of argument. They say there was a miscommunication which meant that the legal representative who appeared before Walton J was unaware of this, or at least failed to bring it to his Honour’s attention. Whether or not there was, in fact, an effective filing of material in the Court of Appeal on 6 November 2025 is unclear.
A white folder was subsequently filed on 17 November 2025 containing a draft notice of appeal and summary of argument, although it appeared at the hearing this morning that that has yet to be served on the respondent. As the respondent submits, if it is the case that the filing on 17 November 2025 was the first filing, it would follow that the applicants must now also seek an extension of time. The present application was notified to the Court late on 16 November 2025. The applicants have submitted that the delay in bringing the present application after what had occurred before Walton J on 7 November 2025 is explained by a breakdown in communication between the applicant’s solicitor and his Sydney agents.
I will set out now the prejudice that would be suffered by the applicants if execution of the writ of possession were to proceed today at 11.30 am. The applicants contend that if execution of the writ of possession does proceed today, they will suffer immediate, permanent and irreparable harm in the following ways. First, the breeding program which has operated for 30 years will be destroyed. Second, some 1,500 superfine Merino breeding sheep will be lost, including ewes that are lambing, noting that we are in the middle of the lambing season. Third, they will lose the ClipCare Quality Assurance Accreditation and the Reda Italian Contract Accreditation. Those are said to be tied to the land and the enterprise which is operated from the land. Fourth, the applicants will lose the February premium wool sale window, with associated loss of income and damage to commercial relationships. Fifth, the loss of planted and fertilised fodder crops which are required to finish lambs that are supplied to the major supermarket chains.
An additional consideration affecting occupation of the property is that there are significant cultural heritage items located on it, and also significant Aboriginal cultural artefacts.
The applicants say that because of the adverse impacts of execution of the writ of possession, if a stay is not granted, their appeal will be rendered nugatory. They also submit that the loss would not be relevantly ameliorated by the respondents selling the sheep if they take occupation. The applicant’s primary position initially was that there should be a stay pending determination of the appeal. The alternative position is that there should be a temporary stay to allow for an orderly departure from the property with their flock, minimising the disruption to their enterprise.
The respondent, who was represented at the hearing before me by Mr Pesman of senior counsel, and subsequently by his instructing solicitor, Mr Leonard, after Mr Pesman was required to attend his scheduled hearing, properly accepts that the applicants will suffer prejudice if the writ of possession is executed, although the respondent does note that the applicants have apparently failed to take any steps since August 2025 to address the need to exit the property in an orderly way. The respondent has indicated that it is prepared to facilitate an orderly exit of the property by the applicants after it takes possession of the land.
However, one complication with the current balancing exercise, and a matter which weighs on it, in my opinion, quite considerably, is that no arrangements have, in fact, been put in place, and there is no certainty about precisely how an orderly exit from the property would proceed if possession was to transfer to the respondent today. That is a significant consideration, particularly from an animal welfare perspective, given the large number of animals on the property and the complications involved with handling them and/or moving them elsewhere.
Turning then to consider what prejudice would be suffered by the respondent if execution of the writ of possession is delayed, the applicants, in pre-empting any complaint of that kind, argue that a delay in execution of the writ of possession will not carry any risk of the respondent being unable to recover the amount owed to it from any later sale of the property. The judgment in favour of the respondents relates to a debt in the principle of $650,000. The applicants contend the property is worth at least $3 million. While there is another mortgagee, or mortgagees, and other judgment creditors, the applicants suggest that all claims could be satisfied and money would be left over if it were necessary to sell the property.
The respondent submits, on the other hand, that it may suffer prejudice if it transpires that it does not have a valid mortgage over the property, in which case it will become an unsecured creditor. In that context, it becomes significant that the applicants appear to have a substantial and growing debt to Murray Laws, which may in time consume enough of the equity in the property to leave the respondent at jeopardy of not recovering the money owed to it. At least that is the concern that the respondent has. That concern has been exacerbated by uncertainty about the amount presently owed by Murray Laws Pty Ltd in circumstances where it has previously been disclosed that Murray Laws Pty Ltd is entitled to compound interest of 4% per month.
To at least partially address that concern, I have made a direction today that the applicants answer a notice to produce which had previously been issued by the respondent to try to clarify that matter. I pointed out to Mr Pesman in the course of argument that any prejudice suffered by the respondent in the event that it is found to be an unsecured creditor would only arise if it was found that it did not have a proper entitlement to possession under its mortgage. He submitted in response that the concern about that accumulating debt has been exacerbated by the applicant’s delay in addressing these matters, and that is a matter to which I give some weight.
In an application of this kind, it is appropriate to consider whether arguable grounds of appeal have been identified. Counsel for the applicants, Mr Burchett, frankly concedes that the appeal papers are in a deficient state, and the application for leave to appeal, draft notice of appeal and summary of argument are poorly drafted. The applicants apparently took primary carriage of the drafting themselves, and that is also said to explain some of the difficulties with the pleadings and the affidavits in the proceedings before Faulkner J. Counsel for the applicants concedes in that regard that large parts of the defence were properly struck out by his Honour.
Relatedly, counsel for the applicants does not seek to rely on the contents of the draft notice of appeal or summary of argument to demonstrate that there is an arguable ground of appeal. He does however submit that there was, on the material before Faulkner J, the kernel of an arguable defence, and there is an associated arguable point of law going to the failure of the trial judge to engage with that defence.
The defence in question which is sought to be advanced by the applicants is that the mortgage was submitted for registration by the respondent when it knew that the applicants were bankrupt that day, and therefore incapable of authorising its registration. It submitted that the subsequent setting aside of the sequestration order did not cure the resulting invalidity of the registration of the mortgage.
In response to that argument, the respondent says that it is factually baseless. It says that the mortgage was executed at a time when the applicants were not bankrupt, and that there was no attempt to register the mortgage while the applicants were bankrupt, as registration occurred much later. The respondent also says that the point, even if it is a good one, would not amount to fraud, and would not provide a basis to defeat registered title. The respondent also raises an issue about whether the argument in question and the evidence that would be relevant to the argument were properly raised before Faulkner J, and therefore could legitimately be raised on the appeal.
In the circumstances that have transpired, particularly because of the undertaking given by the applicants, I do not consider it necessary to resolve the question of whether the suggested appeal ground is arguable or strongly arguable. It has, it seems, significant weaknesses as observed by the respondent, but it is unnecessary to say more about it.
The decisive consideration to my mind in the present matter is an undertaking which has been given by counsel on behalf of the applicants, if a temporary stay is granted, to pay money into Court within 21 days in the amount of $850,000 to abide by any final determination of the Court or otherwise to be paid out in accordance with the written agreement of the parties.
The initial proposal raised by the applicants was for an undertaking of that kind, but in the amount of $650,000.
The respondent in response to that suggestion submitted that the amount owing to it by the applicants, having regard to interest and also costs orders, is well in excess of $650,000. The precise amount is unknown, which is not a criticism of the respondent given the urgency of the matter and the late raising of this issue of the form of undertaking. However, it was estimated from the bar table that the amount actually owing by the applicants to the respondent, as things stand, taking into account interest and costs, would exceed $650,000 by some hundreds of thousands of dollars. Instructions were subsequently obtained, and Mr Burchett advised the Court that the undertaking for payment into court was proffered in the amount of $850,000 in the event that the Court was prepared to grant a stay for 21 days.
With that revision to the amount of the undertaking, I am satisfied that the respondent will be given a very considerable measure of protection. It will be denied the execution of the writ of possession which was otherwise scheduled to proceed at 11.30 am today, but instead it will have significant protection of a different kind. There are two possibilities. One is that the applicants, in accordance with their undertaking, now proceed to pay $850,000 into Court, which will provide the respondent with complete, or at the very least, almost complete security in respect of the amounts owing to it by the applicants.
Alternatively, if the applicants fail to pay that money into Court within 21 days in accordance with their undertaking, then the respondent will be entitled, firstly, to take the benefit of any money that has been paid into Court in a lesser amount, and to take possession in accordance with the delivery up by the applicants of the property to the respondent immediately after that 21 days. There will, in those circumstances, if the amount is not paid into court, as things presently stand, not appear to be any sensible basis on which the applicants could then seek a further stay or complain about the need to vacate the property and for the respondent to take possession of it.
For those reasons, the Court will order that on the undertaking given by senior counsel on behalf of the applicants, which has been recorded in the transcript, there will be a stay of execution of the writ of possession and the judgment of possession for 22 days from today. The stay will therefore extend to 10 December 2025, when the motion will be listed before the Registrar for directions.
If the Court grants an order staying execution of the writ of possession for the next 21 days, the Applicants will:
(a) within 21 days, pay $850,000 into court to abide any final determination by the Court or to be paid out in accordance with the written agreement of the parties; and
(b) in default of making the payment into court deliver up possession of the mortgaged property to the respondent and agree to the release to the respondent of any amount paid into court.
The orders of the Court are:
The applicants, within 7 days, are to respond to, and to the extent appropriate produce in accordance with, the notice to produce previously served seeking documents relating to the liability of the applicants to Murray Laws Pty Ltd.
Upon the undertaking given by the applicants, stay of execution of writ of possession and judgment of possession for 22 days from today 18 November 2025.
Costs to date of the notice of motion filed 17 November 2025 will be costs in the appeal.
Material filed on 17 November 2025 is required to be filed and served on the respondents forthwith.
The notice of motion filed on 17 November 2025 is stood over for directions before the Registrar on 10 December 2025.
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Edmonds
Barrington Winstanley Group Pty Ltd [2025] NSWCA 251
The applicants were ordered within 7 days to respond to, and to the extent appropriate produce documents under, the respondent’s notice to produce concerning their liability to Murray Laws. On the applicants’ undertaking, execution of the writ and possession judgment was stayed for 22 days from 18 November 2025. Costs to that date were made costs in the appeal; material filed on 17 November was to be filed and served forthwith; and the motion was stood over for directions on 10 December 2025 ([30]).
The undertaking given by the applicant is: