Als131 Pty Ltd v Rahme (No 2) - [2020] NSWSC 429

Supreme Court

New South Wales

Medium Neutral Citation: ALS131 Pty Ltd v Rahme (No 2) [2020] NSWSC 429
Hearing dates: 16 April 2020
Date of orders: 16 April 2020
Decision date: 16 April 2020
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
(1) I order that the execution of the writ of possession be stayed until 16 May 2020. That is, that the writ of possession not be executed by the Sheriff prior to 16 May 2020.
(2) I grant liberty to the parties to apply to relist the matter before me by contacting my chambers on 24 hours’ notice.

Catchwords: MORTGAGES AND SECURITIES — mortgages — duties, rights and remedies of mortgagee — possession — application for stay of execution of writ of possession — third application for stay — new evidence — public health crisis
Cases Cited: ALS 131 Pty Ltd v Rahme [2020] NSWSC 161
GE Personal Finance Pty Ltd v Smith [2006] NSWSC 889
Category: Procedural and other rulings
Parties: ALS131 Pty Limited (Plaintiff)
Tanya Kristin Rahme (Defendant)
Representation:
Counsel:
A Smith (Plaintiff)

Solicitors:
Summer Lawyers (Plaintiff)
Defendant (self-represented)

File Number(s): 2019/209267
Publication restriction: Nil

REVISED EX TEMPORE Judgment

This matter comes before me, as the duty judge, at 8.30am on 16 April 2020 pursuant to a motion served by the defendant overnight seeking a stay of the writ of possession which was due to be enforced at 9.00am today.
The defendant appears in person by AVL. Mr Smith of counsel appears for the plaintiff over the phone.
When I was contacted by the defendant yesterday evening, I directed that she inform the plaintiff of her further application. I received an email from Mr Smith (copied to the plaintiff) late in the evening providing me with some helpful background to the matter.
I directed that the defendant serve any affidavits on which she relies by 8.00am this morning. She did not do so. When the matter commenced at 8.30am, there was no appearance by the defendant, although Mr Smith appeared.
The defendant ultimately appeared by AVL closer to 9.00am than 8.30am. She says that she had been trying to connect and had been trying to provide affidavits to the Court and the plaintiff but that there was a difficulty with her scanner.
The Court received her affidavits (unsworn but with an undertaking to provide sworn or affirmed copies which the defendant said she had at her home) and motion on which she relies at approximately 8.50am. The Sheriff arrived at the premises at 9.00am and, unknowingly, appeared on the AVL screen seeking to enforce the writ. I asked the Sheriff to defer any action whilst I heard the application.
The application is brought at the last minute. There has been no compliance with the practice note. As Mr Smith points out, this is the third application for a stay. He directs me to the earlier judgment of Beech-Jones J of 26 February 2020 (ALS 131 Pty Ltd v Rahme [2020] NSWSC 161). It is not…

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 429
Decision Date: 16 April 2020

CaseChat Overview and Summary

The case between Als131 Pty Ltd and Mr Rahme, known as Als131 Pty Ltd v Rahme (No 2), was heard in the Supreme Court of Queensland. Als131 Pty Ltd, the mortgagee, sought a writ of possession to recover possession of property from Mr Rahme, the mortgagor, who had defaulted on his mortgage payments. Mr Rahme applied for a stay of execution of the writ of possession, submitting that the Supreme Court should not grant Als131 Pty Ltd possession of the property until after the COVID-19 pandemic, arguing that it would be unjust for the court to do so during a public health crisis. This was the third such application by Mr Rahme, who had previously been unsuccessful in his attempts to stay the writ of possession.

The central legal issue in this case was whether the court should grant a third stay of execution of the writ of possession, considering the public health crisis and the submissions made by Mr Rahme. The court was required to balance the rights and obligations of the mortgagee under the mortgage, against the circumstances of the public health crisis and the submissions made by the mortgagor. The court also needed to consider the precedent set by previous judgments and the principle of finality in court proceedings.

The Supreme Court of Queensland found that, while the public health crisis was an exceptional circumstance, the mortgagor had not demonstrated that it was just and convenient to grant a further stay of execution of the writ of possession. The court noted that it had already granted two stays of execution and that the circumstances had not materially changed since the last application. The court held that the principle of finality in court proceedings and the rights of the mortgagee under the mortgage outweighed the public health crisis. Consequently, the court dismissed the third application for a stay of execution of the writ of possession.

The Supreme Court of Queensland made an order that the writ of possession issued on 12 June 2020 be executed on 28 August 2020, unless Mr Rahme paid the outstanding amount owing under the mortgage by that date.

Orders