Capital Securities Xvi Pty Ltd v Tortora

[2017] NSWSC 1621

Supreme Court

New South Wales

Case Name:	Capital Securities XVI Pty Ltd v Tortora
Medium Neutral Citation:	[2017] NSWSC 1621
Hearing Date(s):	23 November 2017
Date of Orders:	23 November 2017
Decision Date:	23 November 2017
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	The execution of the writ of possession be stayed until 5pm on 30 November 2017.   Costs are reserved
Catchwords:	PROCEDURE – notice of motion – applications seeking a stay of the writ of possession – short stay granted
Category:	Procedural and other rulings
Parties:	Capital Securities XVI Pty Ltd (Plaintiff) Enzo Tortora (First Defendant) Teresa Tortora (Second Defendant)
Representation:	Counsel: Ms A Rose (Plaintiff)   Solicitors: QBM Lawyers (Plaintiff
File Number(s):	2017/8550
Publication Restriction:	Nil

EX TEMPORE JUDGMENT

1. HER HONOUR: This is an application for extension of the stay of a writ of possession, in circumstances explained in an affidavit sworn by Mr Tortora on 23 November 2017. The application is opposed in circumstances where Mr Tortora has explained that a purchaser has been found, who is not only prepared to purchase the property at a suitable price but, following sale, to rent it to him and his mother, thereby enabling her to continue living in her matrimonial home of many years. The desire not to lose that sale has an obvious basis, in those circumstances.

2. The matter has a considerable history, which is explained in the affidavit and has also been addressed in the parties' submissions. It seems to me to be in the interests of both parties, that if it is possible for this sale to proceed, that that occur. Mr Tortora has indicated that an extension for a further week will enable contracts to be exchanged.

3. In that event, it seems entirely likely that a sensible regime can be agreed between the parties, which would be to their mutual benefit. In the event that there is no exchange, Mr Tortora, I have explained, ought not to expect that the Court will grant any further extensions of the stay. That the loan being in default without repayments being made has an impact on the plaintiff has to be accepted. It also has an impact on the defendants, of course, because whileever this situation persists, their equity in the property diminishes quite rapidly.

4. In all of those circumstances, I will order that execution of the writ of possession be stayed until 5pm on 30 November. The matter will come into the list at 10am on that day, in the hope that further consent orders can then be made.

5. Costs are reserved.

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