Prime Capital Securities Pty Ltd v Pignataro Nominees Pty Ltd & Anor

1. The Court may stay the execution of a judgment pursuant to r66.16 of the County Court Civil Procedure Rules 2018. The discretion of the court to stay execution of a judgment is wide. The court is required to take into account all the circumstances of the case, and is not bound by decisions on other sets of facts.[1]
2. It is self-evident that the starting point is that the party who has obtained a judgment is entitled to have it enforced without further delay. The Court should focus on special circumstances that go to the question of the enforcement of the judgment, rather than the judgment's validity, in determining whether to grant a stay.[2] In essence the critical question on the application is whether Pignataro have established that there are special or exceptional circumstances that would justify the exercise of a discretion in their favour.[3]
3. Pignataro relies on GE Personal Finance Pty Ltd v Smith[4] in which Johnson J set out a number of circumstances where it may be appropriate for a court to grant a stay on orders granting a mortgagee possession of a property. They are:

(a) first, where the defendant intends to file a notice of defence (which is not relevant here);

(b) secondly, where the loan is to be refinanced, (proof of steps undertaken to refinance will be required on the application); and

(c) third, where the subject property is to be sold.[5]

1. His Honour emphasised that where refinancing is relied upon, the defendant must demonstrate a "realistic prospect"[6] of obtaining refinance by taking early steps and producing credible and reliable evidence of refinancing to discharge the total debt.
2. His Honour also observed that the rationale for granting a stay in such circumstances lies in the proper purpose of the mortgagee's power of sale, namely to recover the moneys due. If the debt can be discharged in full by refinance, it may be unnecessary for the mortgagee to enforce possession, a factor to be considered in an application such as this.
3. His Honour also noted that hardship may be a ground for a stay. However, at [22] he said:

"Ordinarily, if a Defendant is not in a position to demonstrate a reasonable foundation for a stay in one of the three circumstances referred to in paragraph 13 above, then there could be no reasonable expectation of an extended stay on hardship grounds only."

1. As noted above, the Court will exercise its discretion to stay the execution of a judgment if special or exceptional circumstances apply.
2. In this application, Pignataro relies on both the second and third factors set out by Johnson J in GE Personal Finance. That is, they rely on their refinance proposal with Trim Capital and on the sale of 339 Clegg Road to release sufficient funds to pay out Prime.
3. Prime disputes that the effect of these transactions will release sufficient funds to repay both Prime and GEMI.
4. Thus, the primary issue to be determined in the application is whether the combined effect of these transactions will release sufficient funds to pay out Prime.
5. I note that the issue of whether the funds are sufficient to pay out GEMI as well as Prime is only of secondary relevance. It is only relevant to the extent that, in practical terms, if GEMI can assert its securities to prevent a sale or refinance without its liabilities being paid out, then it can prevent the transactions completing. Under those circumstances, its position must be taken into account.
6. Pignataro alleges that their refinancing proposal with Trim Capital constitutes a circumstance that justifies the Court's intervention. The evidence shows that Pignataro has executed a term sheet with Trim Capital under which a facility of approximately $4.1 million is to be advanced. Those funds are intended to discharge the entirety of the indebtedness owing both to Prime and to GEMI. The facility is to be secured by first-ranking mortgages over 335 Clegg Road and the Yellingbo property, while the sale of 339 Clegg Road, already the subject of a contract of sale, will provide further repayment capacity.
7. Pignataro submits that this proposal is not speculative. It is supported by a signed term sheet and a contract of sale, and it is presently in the final stages of implementation and is subject only to conditions precedent of the kind ordinarily imposed by a commercial lender.
8. In response, Prime submits that Pignataro's application for a stay is misconceived because the refinancing proposal is incapable of being carried into effect. Prime emphasises that Pignataro has been in default since October 2024, has made no payments since December 2024, and consciously chose not to defend the possession proceedings. Against this background, their belated reliance on a conditional term sheet with Trim Capital does not amount to credible and reliable evidence of an imminent refinancing.
9. Even if the proposal were taken at its highest, Prime argues that the refinancing cannot succeed on the numbers. As at early September 2025, the indebtedness of Pignataro to Prime exceeded $2.6 million and to GEMI exceeded $3.1 million, a combined liability of about $5.76 million. Against this, the proposed Trim Capital loan, net of fees, interest and charges, would provide only about $3.62 million, while the contracted sale of 339 Clegg Road would yield at most $1.45 million after adjustments and costs. The total funds available to Pignataro to pay down the combined liabilities of Prime and GEMI is therefore alleged to be some $685,000 short of what is required, leaving a material funding gap.
10. Prime therefore submits that the application for a stay serves no proper purpose, as it cannot achieve repayment of the secured debts and would only result in further delay of Prime's entitlement to enforce its judgment.
11. Significantly and quite properly, Mr Moore, counsel for Pignataro, accepted that the current state of the refinance and sale proposal leaves his client $685,000 short of the funding necessary to discharge the liabilities of GEMI and Prime. However, he submits that they are hopeful they will be able to negotiate a higher loan facility from Trim Capital.
12. He pointed to the facts in GE Finance which showed that the applicant did not in that case have a firm refinance commitment - but rather an intention to make such an application in the very near future.
13. As such, Pignataro submits that there is a realistic possibility of a refinance within the 30 day period of the stay sought.
14. I am quite unconvinced that, on the evidence before me, there is any realistic possibility that Pignataro will be able to source the additional $685,000 required to be able to pay out the liabilities of GEMI and Prime. I say this for the following reasons:

(a) The facility has been in default since October 2024.

(b) Pignataro has been actively pursuing a refinance all of this year. The best that they have been able to achieve is the facility on offer from Trim Capital.

(c) That facility indicates a required LVR of 75%. It is based on valuations showing a combined security property valuation of $5.5 million. These valuations were obtained on 8 January 2025 and 31 December 2024. That is, they are quite recent.

(d) Based on those valuations Trim Capital was prepared to loan a sum of $4,124,617.13.

(e) Given the relatively recent dates of those valuations, I am unable to infer, as Pignataro submits I should, that a higher valuation might now be obtained leading to a willingness in Trim Capital to loan an additional $685,000.

(f) This would be mere speculation.

(g) I also note that Pignataro expects the transactions to be completed by this Friday 12 September. Given that time frame I consider that it is all the more unlikely that he will be able to close the $685,000 gap.

1. As I indicated above, the test to be applied where refinancing is relied upon is that Pignataro must demonstrate a realistic prospect of obtaining refinance and producing credible and reliable evidence of refinancing to discharge the total debt.
2. Taking into account the sale of 339 Clegg Road and the Trim Capital loan, Pignataro has not done this. The evidence is that he falls short of being able to discharge the entire indebtedness.
3. As to hardship, no doubt the loss of the family home will produce hardship to the Pignataro family. Nevertheless, in the absence of a proposal that will see the total indebtedness being paid out, hardship alone is not a ground to order a stay.
4. Under those circumstances I am unable to exercise my discretion to grant a stay as sought.
5. The summons will be dismissed.
6. I will hear the parties on costs.

I certify that these 10 pages are a true copy of the judgment of His Honour Judge Wise delivered on 10 September 2025.

[1] Joskovitz v Bonnick [1964] VicRp 83; [1964] VR 654 at [656].

[2] Bank of Queensland v Balasingam [2015] VSC 536 at [4].

[4] [2006] NSWSC 889.