Worship Centre Limited v O’Meara

File Number(s): 2025/00116158

Publication restriction: Nil

REVISED EX TEMPORE JUDGMENT

1. This matter comes before me today as the Duty Judge pursuant to a motion filed by the defendant, Brett O’Meara, seeking a stay of a writ of possession on his family home.

2. I am informed that the sheriff is scheduled to execute the writ tomorrow, 14 October 2025.

3. Mr O’Meara appears in person unrepresented. The plaintiffs are represented by Mr Young SC, as instructed by Ms Mirchandani, as instructing solicitor.

4. In support of his application, the defendant relies on his affidavit also dated today which, it must be said, says little more than is contained in the motion.

5. He relies on a number of factors as supporting his application being:

6. He did not attend on the hearing date due to not being properly notified.

7. He still has a first mortgage of $400,000 to St George.

8. He only owes $650,000 to the plaintiffs and they want to take possession of a $1.85 million property.

9. He has approval from another financier to pay the plaintiffs and finalise the proceedings.

10. There will be significant hardship to him as it is the family home. He is living with his two teenage children. He says one of his children is suffering from mental health problems due to earlier family issues.

11. He has already paid $200,000 to the plaintiffs in support of the loan.

12. The plaintiffs rely on an affidavit of Ms Mirchandani affirmed 13 October 2025.

13. At the commencement of the hearing the defendant sought to hand up a letter from Archer Wealth dated 9 October 2025 but, as it turns out, he has received a further letter from Archer Wealth dated 13 October 2025 and that is attached to the affidavit of Ms Mirchandani.

14. The background is that on 7 August 2023 the plaintiffs, as lenders, lent the sum of $508,900 to a company run or operated by the defendant, Dance Beats Pty Ltd. That loan was pursuant to a written loan agreement, which is exhibited to Ms Mirchandani’s affidavit. The defendant then guaranteed repayment of that loan.

15. As the defendant explained, the reason that the loan was taken out was because money was owed arising from earlier Family Court proceedings involving his ex-wife. There may have been a substantial sum on account of legal costs and the defendant took out a second mortgage on his family home to pay some outstanding debts or costs associated with those Family Court proceedings.

16. Dance Beats did not pay the outstanding amounts to the plaintiffs in accordance with the loan agreement and proceedings were commenced by the plaintiffs by way of the filing of a statement of claim.

17. The matter was first listed for directions on 1 July 2025 and then listed for further directions before Faulkner J on 11 July 2025.

18. At some point prior to that time, the plaintiffs indicated an intention to apply to have the defence struck out. The defence was struck out by Faulkner J on 11 July 2025. His Honour also made orders granting leave to the plaintiffs to apply for default judgment and directing that the plaintiffs notify the defendant of the orders made prior to Monday, 14 July 2025 and that there be a stay in respect of the default judgment for 14 days thereafter.

19. The plaintiffs applied for default judgment and obtained orders for a writ of possession. The plaintiffs thus seek to enforce those orders, with the sheriff apparently coming around tomorrow, 14 October.

20. The defendant’s initial response was to suggest that he had not been given proper notice of the orders previously obtained by the plaintiffs.

21. Mr Young then adduced oral evidence from Ms Mirchandani. She recited from her computer all the steps taken in the proceedings and confirmed, with reference to documents on her file, that proper notification was given to the defendant at each stage that steps were taken.

22. I asked the defendant whether he accepted the evidence of Ms Mirchandani and he said he did. He did not seek to challenge it. He suggested that he thought he would be obtaining hard copies of documents but he accepted that the emails had been sent and thus he had received proper notice.

23. Mr O’Meara’s initial suggestion was thus withdrawn.

24. Having regard to the evidence and the oral submissions, the basis on which he seeks a stay is that:

25. He has taken steps to obtain refinancing of the loan and believes that he will obtain refinance within 28 days such that the amounts owing to the plaintiffs can be repaid; and

26. Hardship on the basis that the home is his family home and that he lives there with his two teenage children and that if the writ is executed tomorrow he and his children will find themselves homeless.

27. The plaintiffs oppose the stay on the grounds that the evidence does not disclose that he has or is likely to obtain any refinance.

28. Mr Young submits that on a proper reading of the letter from Archer Wealth dated 13 October 2025 it is nothing more than a letter from a broker or someone acting on behalf of the defendant. Further, he submits that it is plain from the letter from Archer Wealth dated 13 October that refinance will not be obtained because Archer Wealth refers to the mortgage as being a first mortgage. It could not be a first mortgage because there is already a first mortgage with Westpac or St George.

29. On this basis, the plaintiffs submit that the evidence put forward by the defendant does not support the granting of a stay and the application should be dismissed.

30. As is well known (see GE Personal Finance Pty Ltd v Smith [2006] NSWSC 889), there are generally three bases on which a stay might be granted in these circumstances, being:

31. where the defendant indicates that the proceedings are to be defended, a draft notice of grounds of defence should be provided so that the Court can consider the merits of the proposed motion;

32. where the defendant indicates that the loan is to be refinanced, proof of steps undertaken to obtain refinance are necessary on the application; and

33. where the defendant indicates that the property is to be sold, copies of agents’ sale agreements or terms of sale, again should be adduced on the application.

34. In some circumstances, a stay may be sought on hardship grounds. Those circumstances usually being that there would be particular hardship to the defendant or his family. Hardship may of course include homelessness in some circumstances.

35. It must also be said that the fact that a defendant will be left homeless is not necessarily a sufficient basis for granting a stay for any lengthy period. Having said that, in some circumstances, it is appropriate to consider the hardship to the defendant and it is appropriate to have regard to the status of the defendant and/or family members.

36. A number of things are notable in this matter, including:

37. The defendant is employed. He is employed by the Department of Health in a responsible position and is earning an income.

38. He finds himself in the situation he is in because it was necessary for him to borrow money to finance debts owing presumably to lawyers and other people arising out of Family Court proceedings involving his ex-wife.

39. He remains responsible for his teenage children who live with him in the family home.

40. The family home has been a family home for some period, over 12 years.

41. There is no evidence before me which might suggest that the defendant is a person who usually finds himself in this position or is not a genuine individual. There is no evidence before me which might suggest that the defendant is making up a story or not telling the truth in terms of his own beliefs and aspirations. Indeed, Mr Young SC, when making fair and appropriate submissions, accepted that the defendant believed that he might have obtained refinance but submitted that there was really no possibility of him obtaining finance.

42. This is the first application for a stay. The defendant has been to Court previously seeking the same orders and not complied with them.

43. The defendant only seeks a stay for a limited period, that is, he says in Court today that, if the refinance is not obtained within the next 28 days, he will be accepting his position and will not be bringing another application.

44. It may be that the plaintiffs are correct in suggesting that the defendant has little possibility of obtaining refinance and that the defendant does not seem to understand the difference between a first mortgage and a second mortgage or the significance of already having a first mortgage on the property but that is not clear at this stage.

45. What is important on this application is not whether the defendant has obtained the refinance at this stage but I am satisfied that he is taking genuine steps to refinance the loan.

46. I do not understand the plaintiffs to be submitting that the letter from Archer Wealth is not a valid or genuine letter.

47. Whist he has not demonstrated that he has an offer of finance, I accept that he is taking steps genuinely to obtain refinance. He says that his approach will be to obtain refinance and ultimately sell the property in the near future, presumably to avoid the consequences of a mortgagee sale.

48. I also accept that, absent a short stay, there will be significant hardship to the defendant. He will be removed from his property. He and his two teenage children will be homeless.

49. Hardship may not be a ground for a long-term stay but hardship is a relevant factor on an application such as this.

50. In all the circumstances, I am satisfied that a stay of 28 days should be granted.

51. It may be that having heard what Mr Young says today the defendant may need to clarify matters with the financier, but that will be a matter for him.

52. I am also satisfied that a stay should be granted because the defendant has said to the Court that the finance will be available in 28 days and, if not, he will not be making a further application.

53. I note that, as Mr Young suggests, the amount of the original loan continues to increase. It appears to have increased by almost 50% in two years. It would not be to anyone’s benefit that finalisation be delayed because the amount owing is continuing to increase. The defendant accepts that.

54. In the circumstances, I am satisfied that a stay should be granted and I order that the execution of the writ of possession be stayed for a period of 28 days. The plaintiffs are precluded from executing the writ of possession until 10 November 2025.

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