Als131 Pty Limited v Rahme

[2020] NSWSC 210

Supreme Court

New South Wales

Medium Neutral Citation:	ALS131 Pty Limited v Rahme [2020] NSWSC 210
Hearing dates:	6 March 2020
Date of orders:	06 March 2020
Decision date:	06 March 2020
Jurisdiction:	Common Law
Before:	Johnson J
Decision:	The Defendant’s Notice of Motion filed on 6 March 2020 is dismissed. The Defendant is to pay the Plaintiff's costs of the Notice of Motion.
Catchwords:	MORTGAGES - claim by mortgagee for possession of land following mortgage default - writ of possession issued - application for stay of execution of writ - earlier stay application refused - factors relevant to application for stay - stay refused
Legislation Cited:	Contracts Review Act 1980 (NSW) Competition and Consumer Act 2010 (Cth)
Cases Cited:	ALS131 Pty Ltd v Rahme [2020] NSWSC 161 Catalyst Provisional Lending Pty Ltd v Dick-Telfar and Anor [2020] NSWSC 79 GE Personal Finance Pty Ltd v Smith [2006] NSWSC 889; [2016] NSWConvR 56-164 Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161; [1972] HCA 74
Texts Cited:	---
Category:	Procedural and other rulings
Parties:	ALS 131 Pty Ltd (Plaintiff) Tanya Kristin Rahme (Defendant)
Representation:	Counsel: Ms E Keynes (Plaintiff)  In Person (Defendant)     Solicitors:  Summer Lawyers (Plaintiff)  Unrepresented (Defendant)
File Number(s):	2019/209267
Publication restriction:	---

Judgment

1. JOHNSON J: By Notice of Motion filed in Court today, the Defendant, Tanya Kristin Rahme, seeks a stay of execution of a writ of possession with respect to a property at 12 Kintore Street, Wahroonga (“the Wahroonga property”).

2. Proceedings were commenced by Statement of Claim filed on 5 July 2019 in which the Plaintiff, ALS131 Pty Limited, sought possession of the Wahroonga property alleging mortgage default.

3. On 5 September 2019, default judgment was entered in favour of the Plaintiff for possession of the Wahroonga property. The Defendant made application to set aside the default judgment. On 9 December 2019, Registrar Jones dismissed the application to set aside the default judgment.

4. Prior to 26 February 2020, the Plaintiff applied for the issue of a writ of possession with respect to the Wahroonga property. That writ, it appears, was expected to be executed on 26 February 2020.

5. On that day, the Defendant made application to Beech-Jones J as Common Law Duty Judge for a stay of execution of the writ of possession. In a judgment published that day, his Honour declined to stay the execution of the writ and set out a helpful summary of the proceedings to that point and the matters agitated on behalf of the Defendant on the stay application: ALS131 Pty Ltd v Rahme [2020] NSWSC 161.

6. As his Honour made clear, there was no issue that a sum of money in the order of $2 million had been advanced to the Defendant by the Plaintiff. Nor was there dispute that there was default in that the principal remains outstanding and there were other areas of default. His Honour noted that the matters raised by the Defendant on the stay application appeared to relate more to accounting issues rather than seeking to impugn the Plaintiff's entitlement to take possession under the mortgage.

7. His Honour indicated that, if there was a further application for a stay, it should be referred to the Duty Judge who (as his Honour said at [26]) "will at least be armed with these reasons and be aware of the background to the matter".

8. Arrangements have now been made, the Court is informed, for the execution of the writ of possession by the Sheriff next Monday, 9 March 2020. It appears that the Defendant was notified of this on 4 March 2020. It should have come as no surprise to the Defendant that the Plaintiff was moving again to have the writ of possession executed.

9. Today, the Court was notified that there was to be an urgent application by the Defendant for a stay. A Notice of Motion and affidavit of the Defendant affirmed today, 6 March 2020, has been placed before the Court.

10. Ms Keynes appears for the Plaintiff and opposes the grant of a stay.

11. The matters raised by the Defendant in support of the stay application bear some similarity to what was argued before Beech-Jones J. There is an expanded version of areas of complaint set out in the Notice of Motion in which it is said that the Defendant wishes to rely upon the Contracts Review Act 1980 and the Competition and Consumer Act 2010 (Cth) in any Defence. There is no draft Defence at present. There is, at best, a summary of some of the propositions which the Defendant would seek to advance if allowed the opportunity to do so. The affidavit does not really advance the matter in that respect.

12. Beech-Jones J referred to the decision in GE Personal Finance Pty Ltd v Smith [2006] NSWSC 889; [2016] NSWConvR 56-164 (“GE Personal Finance”) with respect to stay applications concerning writs of possession. That judgment sought to identify a number of matters of practice. Relying upon that judgment, the Plaintiff submits that the Defendant has failed to make out a foundation for a stay.

13. It is clear that the Defendant has been on notice since 26 February 2020, from the judgment of Beech-Jones J, of the hurdle that lay in front of her if there was to be a further stay application. That was, after all, one of the reasons why his Honour gave a detailed judgment for the assistance of a future Judge and the parties.

14. The difficulty it seems to me is this. There is a clear default. A large amount of money remains outstanding. It was secured by a mortgage. No Defence was filed. Default judgment was obtained. An application to set aside the default judgment was dismissed. Beech-Jones J has already refused to grant a stay.

15. The principles in GE Personal Finance identify the need for a prompt application for a stay with an appropriate foundation to be identified. Three categories were referred to in that judgment, although they are merely examples of common categories sought to be relied upon in this class of application.

16. The first category (at [13](a), [15]) is if a defendant seeks to be let in to defend the proceedings and usually to set aside a default judgment for that purpose. That involves the clear identification of an arguable defence, with that being done in a reasonably timely fashion. What the Court knows already in the present case is that the application to set aside the default judgment has been dismissed. The matters which the Defendant seeks to raise today concerning a possible Defence and a possible Cross-Claim are all rather imprecise concepts against the background of a loan in excess of $2 million where there is clear default.

17. The Court should approach the matter upon the basis that any arguable defence must be able to impugn the Plaintiff's entitlement to take possession under the mortgage. Those principles are clear enough and were summarised recently in Catalyst Provisional Lending Pty Ltd v Dick-Telfar and Anor [2020] NSWSC 79 (“Catalyst Provisional Lending”) at [23]-[29]. They reflect well-known principles which have stood since the decision of the High Court of Australia in Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161; [1972] HCA 74, referred to in Catalyst Provisional Lending.

18. The inchoate and broad propositions raised by the Defendant, which she would seek to argue in some possible Defence, are not an appropriate foundation for the grant of a stay at this late hour in what is the second attempt by the Defendant to stay the execution of a writ of possession.

19. The second category in GE Personal Finance (at [13](b), [16]-[19]) concerns a situation where a defendant is seeking to refinance to discharge the debt to the mortgagee. There is nothing here to suggest that is what the Defendant is seeking to do.

20. The third category (at [13](c), [20]) is where a defendant wishes to sell the property and there may be well-advanced plans for sale so that it may be in the interests of both the plaintiff and the defendant to allow a property to be prepared and presented for sale in the near future so that the Court may stay its hand by staying the execution of a writ of possession. That is not the present case. Here, there are some generalised statements that the market is good in the Wahroonga area. There is no formulated plan, let alone one that is already underway.

21. A further category referred to in GE Personal Finance (at [21]) is hardship. This is something which Beech-Jones J referred to in his judgment of 26 February 2020 (at [23]). His Honour did not consider the Defendant's position was strong with respect to suggested hardship at that time. In my view, it is even weaker at this point, bearing in mind the view adopted by his Honour then and the material before the Court today.

22. Having considered the material before the Court and the arguments which have been advanced, I am not persuaded that there is any foundation to stay the execution of the writ of possession with respect to the Wahroonga property. I decline to stay the execution of the writ of possession.

23. The Defendant's Notice of Motion is dismissed.

(Submissions were made as to costs).

24. I am satisfied that the ordinary rule as to costs should apply. The Defendant has been unsuccessful with the Notice of Motion. I order the Defendant to pay the Plaintiff's costs of the Notice of Motion.

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Decision last updated: 10 March 2020