Worship Centre Limited & Anor v O’Meara

File Number(s): 2025/116158

Publication restriction: Nil.

ex tempore JUDGMENT (revised)

1. These are proceedings for possession in which the plaintiff mortgagee obtained default judgment after the defence of the defendant, Mr O'Meara, was struck out by Faulkner J on 11 July 2025. A writ of possession has been issued in accordance with the practice and procedure of the Court. The date for execution was originally fixed for 14 October 2025. On 13 October 2025, over the objection of the mortgagee, Mr O'Meara applied to Cavanagh J for a stay of execution of the writ for a period of 28 days to enable a proposal to refinance the debt. Cavanagh J acceded to that application, and made an order in these terms:

“Execution of the writ of possession of the property is stayed for the period of 28 days until 10 November 2025.”

2. Despite Mr O'Meara's confidence and determination that the proposal for refinance would be fulfilled and that the debt due to the mortgagee would be paid out, these things did not come to pass. He now applies to me by way of notice of motion filed today supported by his affidavit from yesterday for a further stay.

3. Before I turn to the grounds upon which the stay is sought, with permissible rhetoric, the mortgagee points out that before Cavanagh J, Mr O'Meara, in somewhat grandiose terms, in answer to a question from his Honour said that he would not make another application.

4. This submission is set out at [7] of the affidavit of Ms Mirchandani, the solicitor for the mortgagee. As I have said, permissible reliance is placed upon that. I do not regard Mr O’Meara’s statement in that respect as any sort of binding statement or undertaking. Nor do I regard it as a statement of future intention capable of giving rise to a promissory estoppel. I put it down to over-optimism on the part of Mr O'Meara that he could achieve refinancing within the period of the stay. It may have been imprudent to have put his own rhetoric in such emphatic terms, but that statement does not preclude him from making this application and I will not treat it as doing so.

5. Mr O'Meara is self-represented. He has appeared to, at least initially, pitch a hybrid proposal that he is attempting to sell the property. On the one hand, he has signed an exclusive agency agreement. He has engaged conveyancers to prepare a contract, and he tells me, and I accept, he has paid a significant sum of money both to the estate agent and to the conveyancers on account of outgoings in respect of the proposed sale. On the other hand, he has received an indicative offer from another financier or broker in relation to the possibility of refinancing.

6. At the outset of this hearing, I asked Mr O'Meara to put his application on one basis or the other. It seemed to me that a hybrid proposal of first having a go at selling it then, if that proves unsuccessful, taking up the prospect of different refinancing is attended by so much uncertainty, especially as to time, that I regard it as an unworkable proposal. It is also an unattractive basis for granting a further stay of execution given the entitlement under the judgment of the plaintiff mortgagee to realise its security.

7. I understood Mr O'Meara to have put his application on the basis that the property would be sold. Although from his submissions, it is clear that he has the refinance prospect at the back of his mind as some sort of fallback position. The refinance prospect, he says, is a relatively short-term loan of six months at a high interest rate and I did remark to him that that seemed to be “out of the frying pan and into the fire” for him. That is not a matter for my judgment.

8. I accept that he is genuine in his efforts to sell the house. As I say, he signed a contract and paid money to advance it. A market appraisal has been set out in a relatively thorough way with comparative property listings (whether they are sales or not is another thing) to illustrate that the appraisal proffered by the estate agent from Richardson & Wrench, a well-known and reputable firm of estate agents, is realistically based upon the agents' market experience. In his affidavit, Mr O’Meara says that the plan by way of marketing is that the first open house will take place on 15 November 2025. He has been told by the conveyancers that the contract will be ready before that date.

9. Mr Young SC has pointed out that, at the moment, there is a great deal of uncertainty especially as to how long it might take for the property to be sold. If the situation is, as Mr O'Meara seems to accept, that the property must be sold, then it is better in the hands of the mortgagee who has a more objective and commercial interest in pursuing the sale at an early time, bearing in mind its obligations to Mr O'Meara as mortgagor. That is to say, they cannot sell him out because of their legal obligations and allowing the mortgagee to conduct the sale is likely to achieve an earlier sale although it does not preclude Mr O'Meara from making efforts himself to obtain a buyer at a good price.

10. The difference, of course, between a mortgagee sale and a sale by the owner in possession is twofold. The first aspect is that necessarily when the writ is executed, Mr O'Meara and his family will be evicted from their home rather than leaving under their own steam at the completion of the sale. The second aspect is that there is at least a point of view that a sale by an owner in possession, provided that the owner in possession goes about the sale energetically, may be calculated to achieve a better price. By that I mean the perception there is a mortgagee in possession may inspire a feeling in the market that purchasers can obtain a bargain rather than paying a fair market price. That perception is, of course, contrary to the legal understanding of the obligation of the mortgagee in possession.

11. From Ms Mirchandani's affidavit, where her enquiries to the Sheriff are detailed, it is clear that no date for eviction has been set nor will be set until the expiration of the current stay of 10 November 2025. I do not have an indication as to the timeframe for an eviction – it may be as little as two weeks or it may be a little longer. The timeframe would depend upon the resources of the Sheriff on the Central Coast and the amount of work to be done in that region.

12. It does seem to me, and perhaps I am wrong, that it is unlikely that a sale could be completed before Christmas and perhaps unlikely before the moratorium period over Christmas and New Year observed by the Sheriff. It may well be that whatever the circumstances, if I grant an extension of the stay, it might be the middle of January before the mortgagee can go into possession and, as Mr O’Meara himself points out, interest is compounding at a rapid rate.

13. Mr O'Meara has a strong imperative to sell, to put a stop to the accrual of the high rate of interest under the terms of the mortgage. It is in his interests to sell as soon as possible to preserve as much of his equity as he can. I think that is a factor in favour of allowing him, now that he has put the house on the market, the opportunity of selling the property as soon as possible. However, there needs to be some ongoing oversight, so far as that is appropriate, of his efforts to sell. Given the length of time usually involved in selling a home, and the usual time for a completion of a sale, a period of 10 weeks would be a relatively short time when one considers the range of possibilities.

14. I accept that Mr O'Meara is genuine in his realisation that the house has to be sold and that he will be relevantly energetic in his efforts to achieve that sale. It is accepted, in accordance with the decision of Johnson J in GE Personal Finance Pty Ltd v Smith [2006] NSWSC 889, referred to by Cavanagh J, proof of the defendant's intention to sell the home is one permissable ground justifying a stay of a writ of possession.

15. Although I do not have the draft contract for sale, I do have the exclusive agency agreement and the other material I have referred to from Mr O'Meara. I am satisfied, and I will repeat myself, that he is determined to sell the property.

16. I do not propose to make a stay for a period of 10 weeks or the like. I think the matter should be brought back before the Court before the end of the law term to obtain an update on the efforts of Mr O'Meara to sell the property.

17. Accordingly, I will allow a further extension of the stay for a period of 28 days to the intent that it will be necessary for Mr O'Meara to make a further application to extend the stay at which time, he will need to provide evidence of what he has done in relation to selling the property and how things are going in that regard. For instance, Mr O’Meara may think it appropriate to obtain evidence from his real estate agent in relation to the campaign – that is a matter for him.

18. If he is unable to persuade the Court that things are on track to achieve an appropriate sale by that time, then obviously that Judge - whether it is myself or another member of the Common Law Division - will have regard to all of the evidence in deciding whether the more appropriate order, in the interests of justice, is to refuse an extension of the stay, and allow the writ to be executed and the sale to be put in the hands of the mortgagee. I make the following orders:

19. The stay ordered by Justice Cavanagh on 13 October 2025 is extended until 4 December 2025.

20. Any application for a further extension of the stay is to be made by Notice of Motion and supporting affidavit filed and served no later than 2 December 2025.

21. Costs are reserved.

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Amendments

16 December 2025

Cover sheet order (2), and paragraph 18 order (2) date was amended.