Belle Vue Property Pty Limited v Piave Market Fresh Pty Ltd

Belle Vue Property Pty Limited, a property developer, applied to Piave Market Fresh Pty Ltd, a tenant, for an urgent stay of execution of a writ of possession. The applicant sought to evict the tenant from commercial premises on the basis that the tenant had failed to vacate following the expiration of the lease. Piave Market Fresh Pty Ltd opposed the application on the basis that it had a foreshadowed claim for relief from forfeiture. The application was heard in the Supreme Court of New South Wales.

The primary issue before the Court was whether the applicant's hardship in evicting the tenant justified the grant of a stay on terms. The Court held that the applicant's inability to secure alternative premises, and the expense involved in the eviction process, were sufficient to demonstrate hardship. The Court also found that the tenant's foreshadowed claim for relief from forfeiture was a matter to be determined in the course of the main proceeding, and was not sufficient to defeat the applicant's claim for a stay.

Accordingly, the Court granted the applicant's application for a stay on terms. The Court ordered that the stay would be effective until the earlier of the tenant's vacating of the premises, or the determination of the tenant's foreshadowed claim for relief from forfeiture. The Court also ordered that the tenant would pay the applicant's costs of the application.

This decision provides useful guidance to property developers and tenants in relation to the factors that may be taken into account in determining whether a stay should be granted in circumstances where there is a dispute over the validity of a writ of possession. The Court's finding that the tenant's foreshadowed claim for relief from forfeiture was not sufficient to defeat the applicant's claim for a stay is also noteworthy, as it suggests that the Court is unlikely to grant a stay where the tenant has a viable claim for relief from forfeiture.