Catalyst Provisional Lending Pty Ltd v Dick-Telfar - [2020] NSWSC 324

Supreme Court

New South Wales

Medium Neutral Citation: Catalyst Provisional Lending Pty Ltd v Dick-Telfar [2020] NSWSC 324
Hearing dates: 31 March 2020
Date of orders: 31 March 2020
Decision date: 31 March 2020
Jurisdiction: Common Law
Before: Harrison J
Decision:
Defendants’ application for a stay of a writ of execution refused

Catchwords: REAL PROPERTY – application for stay of writ of possession – whether defendants entitled to relief in anticipation of regulations that might be made pursuant to the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 or s 229 of the Residential Tenancies Act 2010
Legislation Cited: COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW)
Residential Tenancies Act 2010 (NSW)
Category: Procedural and other rulings
Parties: Oxygen Funding Solutions Pty Ltd (First Plaintiff)
Catalyst Provisional Lending Pty Ltd (Second Plaintiff)
John Ramsay (Third Plaintiff)
Robert William James Dick-Telfar (First Defendant)
Kristin Lorna Cashman Venae-Telfar (Second Defendant)
Representation:
Counsel:
M W Young SC (Plaintiffs)
B Levet (Defendants)
Solicitors:
Summer Lawyers (Plaintiffs)
Carroll & O’Dea (Defendants)

File Number(s): 2018/315828
Publication restriction: Nil

Judgment

HIS HONOUR: On 14 February 2020 Johnson J made the following orders in these proceedings:

The defendants’ notice of motion filed 4 September 2019 is dismissed.

The defendants are to pay the plaintiffs’ costs of the defendants’ notice of motion filed 4 September 2019.

Pursuant to Rule 13.1 Uniform Civil Procedure Rules 2005, summary judgment is given to the plaintiffs for possession of the whole of the land described in Folio Identifier 1X/1X/XX37 being the land situated and known as xx Prince Edward Street, Malabar in the State of New South Wales (the Malabar property).

The plaintiffs have leave to issue a writ of possession forthwith with respect to the Malabar property.

The defendants are to pay the plaintiffs’ costs of the plaintiffs’ notice of motion filed 17 September 2019.

By notice of motion filed on 16 March 2020 the defendants now move the Court for an order that the writ of possession issued to the plaintiffs on 19 February 2020 in respect of the property at xx Prince Edward Street, Malabar be stayed until further order of the Court. That application is supported by the affidavit of the second defendant sworn on the same day.
The application came before me today in the Duty List. Mr B Levet of counsel appeared for the defendants. Mr M W Young SC appeared for the plaintiffs. Mr Levet did not read the second defendant’s affidavit to which I have just referred.
It is common ground that the plaintiffs have instructed the sheriff to recover possession of the property pursuant to their writ of possession tomorrow. Mr Levet informed the Court that no appeal against the decision of Johnson J has been filed although a draft notice of appeal has been prepared. Mr Levet indicated, quite properly in my opinion, that the proposed grounds of appeal, although arguable, are destined to fail.
In the circumstances, Mr Levet submits that I should exercise my discretion to stay the writ for a…

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.

Keep reading for free

Create a free CaseChat account to read Catalyst Provisional Lending Pty Ltd v Dick-Telfar and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] NSWSC 324
Decision Date: 31 March 2020

CaseChat Overview and Summary

In the Federal Circuit Court, Catalyst Provisional Lending Pty Ltd sought a writ of possession against Dick-Telfar in relation to a property. The dispute centred on whether the defendants were entitled to relief from the court in anticipation of potential regulations under the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 or section 229 of the Residential Tenancies Act 2010. The primary legal issue before the court was whether the defendants could be granted a stay of the writ of possession due to the uncertainty created by the possibility of future regulations that might affect their tenancy rights. The court had to determine if the mere possibility of such regulations was sufficient to warrant a stay of the possession order.

The court considered the principles of judicial restraint and the importance of providing a clear and certain outcome in possession proceedings. It noted that while the defendants had a right to seek relief from the consequences of the judgment under the relevant legislation, this did not automatically entitle them to a stay of the writ of possession. The court emphasised that the defendants had not demonstrated a sufficient likelihood that the potential regulations would materially affect their situation. Additionally, the court highlighted the importance of finality in possession proceedings and the potential for significant prejudice to the plaintiff if the writ was stayed. Consequently, the court decided that the defendants were not entitled to a stay of the writ of possession.

The court's decision was grounded in the need to balance the defendants' rights to seek relief under the relevant legislation with the principle of finality in possession proceedings. The court found that the defendants had not made out a compelling case for a stay based on the mere possibility of future regulations. The court also considered the potential prejudice to the plaintiff if the writ was stayed, which would have significant implications for the plaintiff's ability to enforce its rights. The court's ruling provided clarity and finality to the possession proceedings, ensuring that the plaintiff could proceed with its right to possession without undue delay.

Orders