Perpetual Corporate Trust Limited v AI Group Development Pty Limited

Judgment (3 paragraphs)

[1]

REVISED EX-TEMPORE JUDGMENT

By amended notice of motion filed on 21 November 2023, the second and third defendants, Rostam Farjudi, an 80 year old man, and Jamileh Farjudi, a 75 year old woman, seek an order for stay of the execution of a writ of possession that has been obtained by the plaintiff company.
The property the subject of the writ of possession is at [REDACTED], Rydalmere.
The affidavit material served in support of the notice of motion informs me that this is the home of the second and third defendants and has been for many years.
The second defendant is according to the affidavit material, in poor health. The third defendant also has had some health problems this year. She performs the role of caregiver to four grandchildren who live at a separate address in Sydney.
The property in question is also the subject of two residential tenancy agreements between the third defendant and persons occupying the ground level of the property and another person living in a granny flat on the property.
There has been no previous application for stay of the execution of the writ.
By way of background, a statement of claim was filed by the plaintiff on 30 January 2023 pleading that the first defendant obtained a loan from it in July 2020, and the second and third defendants mortgaged the subject property as security for the loan and engaged in an agreement with the plaintiff by which they guaranteed to the plaintiff the due and punctual payment of the moneys due under the loan.
The effect of this arrangement is that if there is default under the loan, the plaintiff is entitled to take possession of the property and obtain judgment against the defendants for the amount owed.
The fourth defendant is the daughter of the second and third defendant, and to the extent I understand it, the first defendant company has some association with the former husband of the fourth defendant.
For the purposes of this application, there is no need to go into the detail that appears to have underpinned this particular arrangement. Suffice to say that the bases for the application before the Court today is, first, that there has been demonstrated on the affidavit material a process for sale of the property set in motion, and second, hardship, given the age and circumstances of the second and third defendant.

Orders

I make the following orders: 1. Pursuant to ss 67 and 135 of the Civil Procedure Act 2005 (NSW), I stay the execution of the writ of possession obtained by the plaintiff on the land comprised in Certificate of Title Folio Identifier [REDACTED] being the land situated at and known as [REDACTED], Rydalmere NSW 2116 until 5.00pm on 29 January 2024. 2. The second and third defendants are to file and serve an affidavit updating the position regarding the progress of the sale of the property on or before 22 January 2024. 3. I list the matter for further consideration of the continuance of the stay at 10:00am on 29 January 2024 before the duty judge.
I should note that the plaintiff also sought liberty to apply to the Sheriff for a date for execution of the writ of possession. I am of the view that such an order would be premature in circumstances where I have considered it appropriate to grant the stay sought. That position can be revisited on 29 January 2024, if considered appropriate, but in the normal course, liberty to apply to the Sheriff would only be granted by the Court in circumstances where the Court decided that the writ of possession should not be stayed.

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Judgment (3 paragraphs)

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