Bellwether Capital Pty Ltd v Holmes - [2019] NSWSC 1526

Supreme Court

New South Wales

Medium Neutral Citation: Bellwether Capital Pty Ltd v Holmes [2019] NSWSC 1526
Hearing dates: 4 November 2019
Date of orders: 04 November 2019
Decision date: 04 November 2019
Jurisdiction: Common Law
Before: Davies J
Decision:
Defendant’s notice of motion is dismissed

Catchwords: LAND LAW – possession of land – application for defendant for stay of execution of writ – late application – no basis shown for stay
Cases Cited: GE Personal Finance Limited v Smith [2006] NSWSC 889; (2006) NSW ConvR 56-164
Category: Procedural and other rulings
Parties: Bellwether Capital Pty Ltd (Plaintiff)
Catherine Margaret Holmes (Defendant)
Representation:
Counsel:
Catherine Margaret Holmes (Defendant) (ex parte)
Solicitors:
Elliot May Lawyers (Plaintiff)
Self-represented (Defendant)

File Number(s): 2018/398243

Judgment

The defendant applies by notice of motion seeking a stay of a writ of possession which is due to be executed by the Sheriff at 9.30 tomorrow morning 5 November 2019. The notice of motion also seeks the following orders:

3. That this matter is settled and the defendant and the plaintiff come to a reasonable final and binding agreement in respect to costs and any future claims that the plaintiff may make for interest owed, further costs and/or damages.
4. If the defendant and the plaintiff cannot agree that this matter be set aside pending the outcome of an investigation into this matter together with an estate matter which I have been dealing with (sic).

The application is made ex parte, no contact having been made by the defendant with the plaintiff or its lawyers.
The defendant has handed to me a document which is said to be an affidavit by her dated 27 September 2019. The affidavit is not signed nor sworn. It provides very little information about the loan and the default in respect of which the writ of possession has been issued.
A questioning by me of the defendant elicited that the loan was originally taken out by way of second mortgage in the sum of $100,000 with a monthly interest rate of 2.9 per cent. The defendant defaulted under that loan agreement and mortgage in August 2017 having apparently paid in advance the interest for the first year under that mortgage loan agreement. The Statement of Claim discloses that the default was a failure to repay the capital of the loan on the expiry date of the loan.
The defendant says that she was served with the Statement of Claim by the plaintiff in December 2018. It does not appear that any defence was filed to that Statement of Claim. On 18 September 2019 a defence purportedly filed by the defendant on 17 September 2019, long after judgment had been given, was rejected by the Registrar under UCPR r 4.10(4).
The defendant said that she engaged solicitors, and in the rather voluminous material provided with the affidavit, there seems to be an indication that those solicitors were at least in correspondence earlier this year attempting to reach some agreement with the plaintiff concerning…

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: [2019] NSWSC 1526
Decision Date: 04 November 2019

CaseChat Overview and Summary

The case involved Bellwether Capital Pty Ltd as the applicant and Holmes as the defendant. The dispute pertained to the possession of certain land, with the applicant seeking to enforce a writ of possession against the defendant. The matter was heard in the Supreme Court of Victoria. The defendant Holmes applied for a stay of the execution of the writ, arguing that the application was made late and without a proper basis.

The court was required to decide whether the defendant's application for a stay of execution was justified. Specifically, the court had to consider whether the lateness of the application and the lack of a demonstrated basis for a stay were sufficient grounds to grant the defendant's request. The applicant argued that the defendant had not provided any compelling reason for the delay or shown any likelihood of success on the merits that would warrant a stay.

In its decision, the court held that the defendant's application for a stay was not well-founded. The court emphasised that the lateness of the application and the absence of any basis for a stay were critical factors. The court found that the defendant had failed to demonstrate any special circumstances that would justify the delay or provide a reasonable prospect of success on the merits. Consequently, the court dismissed the defendant's application for a stay of execution of the writ.

Orders