Arap No. 1 (NSW) Pty Ltd v Hudson - [2017] NSWSC 718

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:
L Corbett (Plaintiff)
Self-represented (First Defendant)
Solicitors:
Kemp Strang (Plaintiff)
Self-represented (First Defendant)

File Number(s): 2015/270732

Judgment

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.
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.
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.
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.
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.
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…

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: [2017] NSWSC 718
Decision Date: 05 June 2017

CaseChat Overview and Summary

The case of Arap No. 1 (NSW) Pty Ltd v Hudson was heard in the Supreme Court of New South Wales. The plaintiff, Arap No. 1 (NSW) Pty Ltd, sought a writ of possession for land after a mediation resulted in a judgment for possession. The defendant, Hudson, applied for a stay of the writ of possession, contending there was no basis for the plaintiff to enforce the writ. The court was tasked with determining whether there were sufficient grounds to grant the stay requested by the defendant.

The central legal issue before the court was whether the defendant had demonstrated any circumstances that would justify a stay of the writ of possession. The court needed to assess the validity of the mediation agreement and the extent to which the defendant's application for a stay was supported by evidence or legal argument. The court also considered whether the defendant's application was an attempt to frustrate or delay the execution of the judgment.

The Supreme Court of New South Wales found that the defendant had not provided any basis to justify a stay of the writ of possession. The court emphasised that the mediation agreement was binding and that there were no exceptional circumstances presented that warranted the stay. The court concluded that the defendant's application was an attempt to delay the enforcement of the judgment, which was not supported by any valid grounds. Therefore, the stay application was dismissed, and the writ of possession was to proceed as ordered.

The final orders of the court were that the application for a stay of the writ of possession be dismissed, and the writ of possession be enforced as per the terms of the mediation agreement. The defendant was to vacate the land within the specified timeframe, and the plaintiff was entitled to take possession of the property. The court's decision reinforced the principle that mediation agreements are binding and that attempts to frustrate their enforcement without valid grounds will not be countenanced.

Orders