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

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”).
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.
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.
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWSC 210
Decision Date: 06 March 2020

CaseChat Overview and Summary

Als131 Pty Limited, a mortgagee, sought possession of land following a mortgage default by the defendant, Rahme. The Federal Circuit Court was tasked with determining an application for a stay of execution of a writ of possession that had already been issued. The court had previously dismissed a similar application by the defendant. The primary legal issue before the court was whether there were sufficient grounds to grant a stay of the writ of possession, given the prior refusal of a similar application. The court considered the circumstances under which a stay might be appropriate, such as changes in the parties' financial position, the likelihood of success on the merits, and the potential for injustice if the writ were executed.

The court held that, for a stay to be granted, the applicant must demonstrate a significant change in circumstances or a strong likelihood of success on the merits of the appeal. The defendant failed to show any new evidence or changed circumstances that would warrant a reconsideration of the earlier decision. The court emphasised that the primary role of the stay application was to prevent injustice, and in this case, the defendant did not establish that executing the writ would cause an irreparable injustice. Consequently, the court refused the application for a stay of execution of the writ of possession. The decision underscored the stringent criteria required for such applications and reinforced the principle that a stay is not a matter of right but rather a discretionary remedy based on the specific circumstances of each case.

Orders