Australia and New Zealand Banking Group Limited v Soliman

The proceedings involved Australia and New Zealand Banking Group Limited, as the mortgagee, and Mr Soliman, the mortgagor. The dispute arose when the bank sought possession of the property, which led to the issuance of a writ of possession. Mr Soliman applied for a stay of execution of the writ, claiming that he was actively attempting to refinance the property to prevent the loss of possession. This application was part of a series of stay applications, each based on varying circumstances. The court was required to determine whether the applications were made in good faith and whether the hardship claimed was relevant and significant enough to warrant a stay of execution of the writ of possession.

The court examined the nature and substance of the applications and the circumstances surrounding them. It considered whether the applications were made in good faith, as required by the relevant legislation, and whether the hardship claimed by Mr Soliman was relevant to the decision to grant a stay. The court noted that the applications were made after the writ of possession had been issued and were part of a pattern of behaviour aimed at avoiding the consequences of the mortgagee's entitlement to possession. The court also took into account the fact that the hardship claimed was not directly related to the mortgagee's entitlement but rather to the consequences of the mortgagee's exercise of their legal rights.

In light of the above, the court found that the applications for a stay were not made in good faith and that the hardship claimed was not relevant to the decision to grant a stay. The court held that the mortgagee was entitled to possession of the property and dismissed the application for a stay. The court emphasised that the applications were made in an attempt to avoid the consequences of the mortgagee's legal rights, and the hardship claimed was not directly related to the mortgagee's entitlement. The court further held that the mortgagee was entitled to the writ of possession, and the application for a stay was dismissed.

The final orders of the court were that the application for a stay of execution of the writ of possession was dismissed, and the writ of possession was to be enforced. The court also ordered that the costs of the application be paid by Mr Soliman to the mortgagee. The court's decision emphasised the importance of good faith in making applications for a stay and the need for the hardship claimed to be directly related to the mortgagee's entitlement to possession.