Abraham Property Holdings Pty Ltd v Kehoe

[2002] NSWSC 664

CITATION:	Abraham Property Holdings Pty Ltd v Kehoe [2002] NSWSC 664
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	SC 11815/02
HEARING DATE(S):	23 July 2002
JUDGMENT DATE:	23 July 2002
PARTIES :	Abraham Property Holdings Pty Ltd Stephen Bernard Kehoe
JUDGMENT OF:	Sperling J at 1

COUNSEL :	Mr D Farrar (Solicitor) for the Plaintiff Defendant in person
SOLICITORS:	Tress Cocks & Maddox Lawyers for the Plaintiff Defendant in person
DECISION:	1. I direct that the proceedings be listed in the Registrar's possession list on Friday 26 July 2002; 2. I order a stay of proceedings on the Writ for Possession issued on 19 July 2002 until 4 pm on Friday 26 July 2002; 3. I direct the defendant Mr Kehoe to file and serve an affidavit in support of any application for a continuation of the stay by 12 noon on Thursday 25 July 2002; 4. I direct the Registry to notify the Sheriff by telephone and fax of the order for a stay of the Writ for Possession; 5. I reserve the question of costs of today; 6. In the event of an application to be made for a continuation of the stay, Mr Kehoe is directed to file and serve, in addition to an affidavit, a notice of motion claiming such an order returnable before the Registrar on 26 July 2002.

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
Duty List

Sperling J

Tuesday, 23 July 2002

11815/02 Abrahams Property Holdings Pty Ltd v
Stephen Bernard Kehoe

Judgment

1 His Honour: On 19 July 2002 Dowd J made orders in these proceedings, including judgment for possession and leave to issue a Writ for Possession. The proceedings were instituted by the plaintiff, Abrahams Property Holdings Pty Limited, against Stephen Bernard Kehoe for possession of residential premises at 89 Barcom Avenue, Rushcutters Bay.

2 By notice of appeal filed on 19 July 2002 Mr Kehoe has appealed against the orders made by Dowd J. Today Mr Kehoe appeared before me as duty judge. He informed the Court that he had been advised that the Sheriff would execute on the writ at 1.30 pm today. At my request, Mr Farrar, Solicitor, attended at court. The Court’s appreciation of his attendance and of his attendance at short notice should be recorded.

3 On the information provided to the Court from the bar table, it appears that Mr Kehoe and his partner are in occupation of the premises, and that there is a substantial sum of money claimed by the plaintiff, Abrahams Property Holdings Pty Limited, to be in arrears of rent. The Court was further informed that there is a mortgage and that, without an income stream, the present situation places a strain on the finances of the plaintiff company.

4 The countervailing consideration is that if the Writ of Execution is not stayed, Mr Kehoe’s appeal would be rendered futile. At this stage the Court has not been placed in the position to examine the merits of the appeal or to make an informed assessment of the circumstantial facts. Sufficient has been placed before the Court, however, to persuade me that a short stay should be allowed for the purpose specified by Mr Kehoe, namely, in order to obtain legal advice, for which purpose he informs the Court that he has an appointment with counsel this afternoon.

5 I make the following orders:

1. I direct that the proceedings be listed in the Registrar’s possession list on Friday 26 July 2002.

2. I order a stay of proceedings on the Writ for Possession issued on 19 July 2002 until 4 pm on Friday 26 July 2002.

3. I direct the defendant Mr Kehoe to file and serve an affidavit in support of any application for a continuation of the stay by 12 noon on Thursday 25 July 2002.

4. I direct the Registry to notify the Sheriff by telephone and fax of the order for a stay of the Writ for Possession.

5. I reserve the question of costs of today.

6 I add the following observation. Mr Farrar did not have the opportunity of presenting a considered argument to the Court on the hearing today. Accordingly, I emphasise, if there be a need to do so, that any application for a continuation of the stay should be considered de novo, without any presumption being drawn from the order made today that there is prima facie an entitlement to a continuation of the stay.

7 I will add the following order:

6. In the event of an application to be made for a continuation of the stay, Mr Kehoe is directed to file and serve, in addition to an affidavit, a notice of motion claiming such an order returnable before the Registrar on 26 July 2002.

-oOo-

Last Modified: 07/29/2002