Arap No. 1 (NSW) Pty Ltd v Hudson
[2017] NSWSC 718
•05 June 2017
Supreme Court
New South Wales
Medium Neutral Citation: Arap No. 1 (NSW) Pty Ltd v Hudson [2017] NSWSC 718 Hearing dates: 5 June 2017 Date of orders: 05 June 2017 Decision date: 05 June 2017 Jurisdiction: Common Law Before: Davies J Decision: First Defendant’s Notice of Motion seeking stay of execution of writ of possession dismissed.
Catchwords: REAL PROPERTY – possession of land – judgment for possession following mediation – stay sought on writ of possession – no basis shown for stay Cases Cited: Hudson v Arap (NSW) Pty Ltd [2015] NSWCA 126 Category: Procedural and other rulings Parties: Arap No. 1 (NSW) Pty Ltd (Plaintiff)
Geoffrey Stephen Hudson (First Defendant)Representation: Counsel:
Solicitors:
L Corbett (Plaintiff)
Self-represented (First Defendant)
Kemp Strang (Plaintiff)
Self-represented (First Defendant)
File Number(s): 2015/270732
Judgment
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The applicant, who is the first defendant in the proceedings, seeks a stay of execution of a writ of execution which was issued by the plaintiff to enforce a judgment obtained on 6 April 2017.
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The proceedings were somewhat unusual in that the contractual documents between the parties on the face of the arrangement suggested that there was a lease between the plaintiff and the defendants. This is more particularly discussed in the Court of Appeal judgment on appeal from NCAT: Hudson v Arap (NSW) Pty Ltd [2015] NSWCA 126. The Court of Appeal held that the arrangement amounted to a mortgage given by Mr Hudson to Arap.
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New proceedings were commenced in the Common Law Division with a statement of claim being filed by Arap on 15 September 2015 seeking possession of the property at 13 Wylmar Avenue, Burraneer. I case managed the proceedings from December 2015 until February 2017.
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The proceedings were ultimately referred for mediation, which was held before Mr Richard Rolfe and a settlement was reached which became reflected in court orders and notations on 6 April 2017. The other party to proceedings and the mediation was a solicitor, Ms Feeney, who had acted for Mr Hudson when the contractual documents were first executed back in 20123.
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Mr Hudson was represented at the mediation and the result was orders whereby the plaintiff was given possession of the property at 13 Wylmar Avenue, Burraneer and given leave to issue a writ of possession. Various notations were made by the Court to reflect the substance of the settlement which was achieved. That involved the solicitor paying to the plaintiff the sum of $140,000, with the plaintiff in turn playing Mr Hudson the sum of $280,000. Of that sum $20,000 was payable within fourteen days and has been paid. The remainder of the $260,000 is payable subject to Mr Hudson giving vacant possession of the property.
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Mr Hudson has received a notice from the Sheriff’s Office indicating that possession will be taken of the property at 9.30 tomorrow morning. That notice must have been received some weeks ago but Mr Hudson informs me that he had a stroke some weeks ago and was only released from hospital one week ago.
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Prior to that time, arrangements were made at some time in the future for him to have heart surgery. It is apparent that the stroke suffered by Mr Hudson has caused him some degree of brain damage, which he acknowledges. He has demonstrated a problem in court in being unable clearly to express himself, either in writing or in speech. That is, no doubt, a resultant matter from the stroke.
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I have further managed to glean from what Mr Hudson has told me that the reason that he seeks a stay of execution is that he wants to make a further attempt to try to stop the property being taken from him and, as he says, “to fight the plaintiff in the matter”. That provides no basis for the grant of a stay in the circumstances where the proceedings were settled in their entirety at a mediation where Mr Hudson was represented by a lawyer.
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It is clear that, at least at this remove, Mr Hudson is unhappy with the settlement that was ultimately achieved. That forms no basis for setting it aside nor does it give any proper basis for granting a further stay in the matter.
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It is not suggested, for example, that given time Mr Hudson will be able to pay out what is owing to the plaintiff nor that he has another proposal which would ensure that the plaintiff is paid and remove the need for it to take possession of the property.
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Even accepting that Mr Hudson had the stroke, this application has been left until the very last moment, and no proper basis for any stay has been shown.
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In those circumstances the application must be refused.
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Decision last updated: 13 June 2017
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