Hastings Capital Australia Pty Ltd v Bell

At the current time, the Collaroy property is encumbered by three mortgages and three caveats. The estimated total amount secured by the mortgages over the Collaroy property is approximately $6.775 million. Plainly, the reason that the parties are here is because the defendants have been unable to pay the amounts owing on each of the mortgages on their property. This has, seemingly, been the situation since sometime in the first half of 2025.

Judgment was obtained on 25 August 2025 and a writ of possession and notice to vacate to the defendants was issued. Thereafter, the defendants commenced to negotiate with the plaintiffs for the purposes of allowing them either to refinance or, ultimately, sell their property. As is apparent from the affidavits of the first defendant, Diana Bell, relied on in support of the motion, the defendants are anxious to remain in their family home. They have three children who go to school nearby and, as might be expected, are doing everything possible to avoid having to move out of their family home.

Having said that, there is no dispute that they are in arrears and that the plaintiffs are entitled to enforce under the terms of the loan agreements. The negotiations between the defendants and the plaintiffs ended up with an agreement which was the subject of orders made by Slattery J on 28 January 2026. The effect of the agreement was that the defendants would undertake to sell their property at an auction which they had arranged on 12 February 2026, and if the property was not sold, vacate the property within 21 days. Having regard to those undertakings the plaintiffs agreed to the stay of the issuing of the writ of possession until 13 February 2026. Unfortunately, the property was not sold at auction. Indeed, there appear to have been no bidders.

Despite that and despite their undertakings, the defendants then set about or, at least continued, with their efforts to refinance the existing loans. They come before the Court today presenting evidence that they have obtained unconditional offers of finance which would have the effect of them being in a position to pay to the plaintiffs all the moneys which are outstanding. As Ms Bell says in her affidavit, she anticipates that the amount available, once the refinancing has taken place, will be in the order of $7.34 million. Annexed to her affidavit of 28 January 2026 is what is described as a valuation, but perhaps is more like an indication from a real estate agent, that the property may have a value of $7 million.

I have considered the offers of refinance and, as far as I can determine, they appear to be genuine offers. Mr O’Sullivan of counsel who appears for the defendants also points out that on each of the offers there is reference to other facilities such that it would seem, at least, that those offering to refinance are aware of the other proposed facilities as well. Mr Rogers, who appears for the plaintiffs, makes no submission that the offers of refinance are not genuine.

The plaintiffs oppose the orders sought in the motion, as is their right, essentially on the basis that this process, that is the process of attempting to obtain refinance and/or sell the property, has been going on for a period now of nearly seven months. Further, the plaintiffs agreed to an earlier stay of the writ of possession on the undertaking of the defendants to move out of their property within 21 days of 12 February 2026, if the property did not sell.

As Mr Rogers points out, notwithstanding all that, the defendants come before the Court today, being the day on which they are due to vacate the property, seeking an order that they not be required to move out of the property in the hope of refinance.

The possibility of refinance is a matter which might be taken into account in determining whether the Court should stay the execution of a writ of possession: see GE Personal Finance Pty Limited v Smith [2006] NSWSC 889. The question that arises in this matter is really whether, having regard to the events over the past seven months and the ample opportunity which the defendants have been afforded to either repay the loan, sell their property or refinance, they should now be given a further opportunity or a further extension. Mr Rogers submits that the plaintiffs would like to get on with the process and take possession to arrange for the property be sold as soon as possible.

I accept that the defendants have brought another application at the 11th hour, but I also accept that the offers of refinance appear, on their face, to be genuine. Further, the fact is that the defendants have very recently, been unable to sell their property such that the plaintiffs are not necessarily in the position that they will simply be putting the property on the market next and a sale will ensue.

Further, I infer that the defendants did everything possible to sell their property, that is, in terms of making their property ready for sale.

I am satisfied that the defendants should be given, what I will describe as “one further opportunity”, to organise themselves to repay the money to the plaintiffs. They have thus been unable to do so through sale but they appear to have offers of refinance which, on the evidence before me, would cover the amounts outstanding to the plaintiffs.

In those circumstances and on the basis that the defendants will not be given any further extension of time except that of exceptional circumstances, I should make the orders or orders similar to those sought in the motion.

The orders I make are thus:

The execution of the Writ of Possession of the land comprised in folio identifier [redacted] being the land situated and known as [redacted] Collaroy in the State of New South Wales (“Property”) issued on 25 August 2025, be stayed until 13 March 2026;

The time for the defendants to vacate the property pursuant to the undertaking recorded in par 2(a) of the orders made on 28 January 2026, be extended to 3 April 2026;

In the event the defendants become aware that the refinancing which they propose will no longer take place, that is, that the offers made by the financiers annexed to the affidavit of the first defendant, are no longer available, the defendants are to inform the plaintiffs through their solicitors, within 24 hours.

After discussion with the parties about making further orders precluding the defendants from making a similar application, perhaps on different grounds, it seems to me that it is only necessary to note that, at least in my view, this should be the last opportunity for the defendants. They should not be permitted to pursue a further application, except in exceptional circumstances.