Australia and New Zealand Banking Group Ltd v Bragg (No. 4)

[2017] NSWSC 268

Supreme Court

New South Wales

Medium Neutral Citation:	Australia and New Zealand Banking Group Ltd v Bragg (No. 4) [2017] NSWSC 268
Hearing dates:	17 March 2017
Date of orders:	17 March 2017
Decision date:	17 March 2017
Jurisdiction:	Common Law
Before:	Davies J
Decision:	1. Defendant’s application for a stay of the execution of writ of possession dismissed. 2. Defendant to pay the Plaintiff’s costs of the application.
Catchwords:	REAL PROPERTY – possession of land – application to stay writ – prospective exchange of contracts by defendants to sell subject land – second application on the same basis – exchange dependent upon purchasers obtaining satisfactory valuation – no basis for further stay
Cases Cited:	Australia and New Zealand Banking Group Ltd v Bragg (No 3) [2017] NSWSC 208. GE Personal Finance Pty Limited v Smith [2006] NSWSC 889
Category:	Principal judgment
Parties:	Australia and New Zealand Banking Group Ltd (Plaintiff) Joseph Ralph Bragg (First Defendant) Conjola Investments Pty Ltd (Second Defendant)
Representation:	Counsel: M Dawson (Plaintiff) In person (Defendants)   Solicitors: William James (Plaintiff) Self-represented (Defendants)
File Number(s):	2015/65627

Judgment

1. I gave judgment in this matter on 10 March 2017: Australia and New Zealand Banking Group Ltd v Bragg (No 3) [2017] NSWSC 208. I gave judgment for the Plaintiff for possession of the subject land and gave leave to the Plaintiff to issue a writ of possession to enforce the judgment of the Court.

2. Mr Bragg appeared on that day and asked for a stay, because he said that he was expecting to exchange contracts with a purchaser of the property. The Plaintiff consented to a stay of seven days, on the basis that Mr Bragg, if necessary, brought a formal application based on the prospective sale. Mr Bragg told me that he was confident of turning up on 10 March with an exchanged contract, but the purchasers' solicitor had been away for a week, and was meeting the purchasers on the Monday, that is, 13 March. He told me that they had done all of their due diligence on the matter. A stay was then ordered for a period of seven days.

3. On 17 March Mr Bragg filed a Notice of Motion seeking a stay of judgment for six weeks to allow for exchange of contracts, settlement and discharge of the loan. Although the Motion was only formally filed on 17 March, it had been forwarded to my associate and, I believe, the Plaintiff on 15 March. An affidavit of Mr Bragg of 15 March in support said that contracts for the sale of land are waiting for exchange, on receipt of a commercial valuation of the buyers' estate. The affidavit said that the buyers had confirmed their willingness to exchange immediately on receipt of their commercial valuation and settle within 42 days.

4. This particular sale had been notified by agents to solicitors acting for the Defendants in the matter on 16 February 2017. That led to the solicitors for the Defendants writing, on 9 March, to the Plaintiff's solicitors saying that the purchasers' solicitors were ready to exchange contracts.

5. The position today is that no contracts have been exchanged and, on the basis of the information set out in Mr Bragg's affidavit, it appears that exchange of contracts will be dependent upon the purchasers having obtained a satisfactory valuation of some parcel of land which Mr Bragg says is not the land being purchased.

6. In GE Personal Finance Pty Limited v Smith [2006] NSWSC 889 Johnson J dealt with the principles upon which a stay might be granted. At paragraph [13] he said this:

As paragraph 20 of the Practice Note [that is the Possession List Practice Note, promulgated by the Chief Justice of this Court] makes clear, there are three common circumstances advanced on a stay application.

7. Relevantly for the present application is the third of those, where his Honour said:

Where the Defendant indicates that the subject property is to be sold, copies of agent's sale agreements, a contract for the sale of property and advertisements and other documentary evidence ought to be provided.

8. At the present time there can only be said to be an expectation that contracts will be exchanged. That expectation has been present since no later than 9 March 2017. It has not yet come to fruition.

9. A further significant matter is that the last moneys paid by the Defendants to the Plaintiff were paid in late 2014. No amounts have been paid since that time. Mr Bragg asserts that if one has regard to the amount that was then paid, being an amount over $700,000, the Defendants would be in advance of the payments due under the loan agreement. That fails to take account of the fact that the loan agreement provided for the repayment of the moneys a long time prior to today, and even a long time prior to when those moneys were paid in late 2014.

10. There is no basis at the moment for granting any further stay. Exchange of contracts is dependent upon events outside the control of the Defendants. If the valuation is not satisfactory to the prospective purchasers or their financiers exchange is unlikely to occur. As I noted in my principal judgment other offers have been made to the Defendants which have not, for one reason or another, come to fruition.

11. If events change, the Defendants are in a position to make a further application demonstrating that there is a properly exchanged contract for sale.

12. The Defendant's application for a stay is therefore dismissed. The Defendants are to pay the costs of the application.

**********

Decision last updated: 20 March 2017