Barclay Finance Pty Ltd v Manning - [2017] NSWSC 1050

Supreme Court

New South Wales

Medium Neutral Citation: Barclay Finance Pty Ltd v Manning [2017] NSWSC 1050
Hearing dates: 26 July 2017
Date of orders: 26 July 2017
Decision date: 26 July 2017
Jurisdiction: Common Law
Before: Lonergan J
Decision:
See paragraph [31]

Catchwords: CIVIL PROCEDURE – mortgages and securities – possession – application for stay of writ of possession – hardship
Legislation Cited: Civil Procedure Act 2005 (NSW) s 135
Cases Cited: GE Personal Finance Ltd v Smith [2006] NSWSC 889
Westpac Banking Corporation v Diagne [2014] NSWSC 1623
Category: Procedural and other rulings
Parties: Barclay Finance Pty Ltd (Plaintiff)
Robert Manning (First Defendant)
Claire Louise Manning (Second Defendant)
Representation:
Counsel:
L R Young (Plaintiff)
H Mann (First Defendant)
Solicitors:
Elliott May Lawyers (Plaintiff)
Swaab Attorneys (First Defendant)

File Number(s): 2016/371580
Publication restriction: Nil

Judgment

On the afternoon of 26 July 2017, the first defendant requested an urgent hearing of a notice of motion seeking a stay of writ of possession. In support of the application, he relied upon his affidavit sworn 26 July 2017, a letter from his solicitors to a real estate agent, Robert Todarello at Northside Realtors dated 26 July 2017, and a proposed contract for sale of the a property in Naremburn (“the Property”), which is the subject of the writ of possession.
The Property is the home of the defendants and their son who, relevant to this application, is in year 12 and was about to start his trial exams on 31 July 2017.
The background to this application is that a notice to vacate the property had been served on 19 June 2017 pursuant to the processes of this court, and that was to be enforced at 10:30 am on 27 July 2017; that is the morning following this application being brought before me as Duty Judge.
Ms Young of counsel was able to appear at short notice on behalf of the plaintiff and assisted with the background to the application and made helpful oral submissions.
I formed the view, given the material in the affidavit and the apparent arrangements made for the sale of the property together with discussion and cooperation between counsel for the parties, that the writ should be stayed on certain conditions. I made various orders which were entered with written reasons to follow given the obvious urgency of the application.

Facts

The defendants have been living at the property for over 18 years and own the property as joint tenants. They live there with their son who is currently aged 17.
The property is subject to a mortgage to the National Australia Bank which has a current debt of $676,983.10.
In July 2015, the defendants entered into a mortgage with the plaintiff for the sum of $232,342.00 with an interest rate of 2% per week. The mortgage was for a short term of 26 weeks. The borrowers were recorded to be both of the defendants as well as a company associated with them, BRZX Pty Ltd.
Given the…

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 1050
Decision Date: 26 July 2017

CaseChat Overview and Summary

The matter of Barclay Finance Pty Ltd versus Manning was before the Supreme Court of Queensland, where Barclay Finance sought a writ of possession for a property following a default on mortgage payments by Manning. Barclay Finance sought an immediate possession order, while Manning applied for a stay of the writ, citing financial hardship. The court was tasked with balancing the rights of the mortgagee against the equitable principle of relief from hardship.

The primary legal issue before the court was whether the hardship experienced by Manning was sufficient to warrant a stay of the writ of possession. The court needed to determine if Manning's financial situation met the threshold for equitable intervention and whether this was a case where the strict legal rights of Barclay Finance should be overridden by considerations of equity and hardship. The court also had to consider the impact of any delay in possession on Barclay Finance's interests.

The court acknowledged the equitable doctrine that allows for relief from the strict enforcement of legal rights in cases of hardship. It considered the nature and extent of Manning's financial difficulties, including his ability to meet living expenses and other obligations. The court concluded that while Manning's situation was indeed one of hardship, it was not of such a degree as to warrant a stay of the writ of possession. The court found that the strict legal rights of Barclay Finance to recover the property outweighed the equitable considerations of hardship in this instance. The court determined that the immediate possession order should proceed, but it ordered that the execution of the writ be stayed for a period to allow Manning to make arrangements for alternative accommodation.

The court ordered that the writ of possession be stayed for a period of two months, during which Manning was to make reasonable efforts to find alternative accommodation. After this period, Barclay Finance was to be permitted to execute the writ of possession. This decision balanced the need for the mortgagee to enforce their security with the equitable principle of considering the mortgagor's hardship, while also ensuring that the delay did not unduly prejudice Barclay Finance's interests.

Orders