Collis Finance Pty Ltd v Hertford (No. 3)

[2016] NSWSC 618

Supreme Court

New South Wales

Medium Neutral Citation:	Collis Finance Pty Ltd v Hertford (No. 3) [2016] NSWSC 618
Hearing dates:	10 May 2016
Date of orders:	10 May 2016
Decision date:	10 May 2016
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	(1) Dismiss the defendants’ Notice of Motion filed on 9 May 2016 for a stay of the writ of possession.
Catchwords:	PRACTICE AND PROCEDURE – application for stay of writ of possession – no proper basis to defer execution of writ – application dismissed
Cases Cited:	Collis Finance Pty Ltd v Hertford [2016] NSWSC 149 Collis Finance Pty Ltd (No. 2) [2016] NSWSC 192
Category:	Principal judgment
Parties:	Collis Finance (Plaintiff) Terrence Patrick Hertford (First Defendant) Elizabeth Smith Hertford (Second Defendant)
Representation:	Counsel: D Fleming (Plaintiff) D Hertford (by leave on behalf of First and Second Defendants)   Solicitors: Pigott Stinson (Plaintiff)
File Number(s):	2015/310165

Judgment

Introduction

1. By notice of motion filed on 9 May 2016, Terrence and Elizabeth Hertford, the defendants, seek a stay of a writ of possession for a period of four weeks. Terrence Hertford, junior, their son (Mr Hertford) sought leave to appear on their behalf at the hearing of the application in the Duty list on 10 May 2016.

2. Collis Finance Pty Ltd, the plaintiff, opposed leave being granted to Mr Hertford to appear on behalf of his parents and opposed the stay. I allowed Mr Hertford to adduce evidence and make submissions in support of the defendants’ stay application.

3. At the conclusion of the hearing on 10 May 2016 I refused the stay and ordered the defendants to pay the plaintiff’s costs of the stay application. What follows are my reasons for these orders.

Background to the application

4. These proceedings commenced on 22 October 2015. The plaintiff claimed possession of two neighbouring properties in Arden Street, Coogee (Lots 2 and 3) on which two shops are located (the Properties).

5. The defendants filed a defence which was struck out by Davies J: Collis Finance Pty Ltd v Hertford [2016] NSWSC 149 on 29 February 2016. On 7 March 2016, the defendants sought leave to file another defence but Davies J refused to permit it to be filed on the grounds that it did not disclose a defence to the plaintiff’s claim to possession of the Property. Accordingly, his Honour granted leave to the plaintiff to move for default judgment against the defendants: Collis Finance Pty Ltd v Hertford (No. 2) [2016] NSWSC 192.

6. By notice of motion filed on 22 March 2016, the plaintiff sought leave for the issue of writs of possession of the Properties and writs of possession. Writs of possession in respect of each of the Properties were issued on 29 March 2016.

Evidence in support of stay application

7. Mr Hertford relied on two affidavits of his mother, Mrs Hertford, who deposes as to her husband’s poor health; issues with the calculation of interest; and the difficulties of obtaining refinance of the debt owing to the plaintiff. Mrs Hertford annexed a proposal for refinance entitled “for Hertford from Vasko”, which appears to have been produced by a person by the name of John Rawl who describes himself as a “facilitator”.

8. The plaintiff relied on an affidavit sworn by Hartley Cook, who is a solicitor and a director of the plaintiff in which he deposed as follows. The loan over Lot 3 was for a principal sum of $950,000 and was advanced on 26 June 2009. It was an interest-only loan and is due for repayment. The loan over Lot 2 was for $800,000 and was made in August 2007. The principal sum was increased to $850,000 in September 2010 at the defendants’ request. The defendants have been in default of both loans since 1 January 2014. Since that time, few interest payments have been made and no payment of principal has been made. As at October 2015 the amount of interest said to be owing under both the loans exceeded $300,000. The interest on both loans to the plaintiff is in the order of $500 per day.

9. The defendants are also in default of a second mortgage over the Properties in favour of the ANZ Bank as well as an unregistered mortgage in favour of Prospa Advance Pty Ltd. Mr Cook does not consider that there would be any substantial equity in the Properties having regard to the encumbrances.

10. Mr Cook also deposed that the defendants have never advised the plaintiff that they were in a position to refinance the loans from the plaintiff or identified any lender who was ready and willing to effect such refinance.

Consideration

11. In the circumstances set out above, there is no proper basis to defer the execution of the writ of possession by granting a stay. The plaintiff’s right to possession has not been impugned. It is entitled to enforce it. Moreover, there is no benefit to the defendants in having their indebtedness increase in circumstances where they are, apparently, unable to meet their obligations.

Orders

12. For the foregoing reasons I made the following orders:

1. Dismiss the defendants’ Notice of Motion filed on 9 May 2016 for a stay of the writ of possession.

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Decision last updated: 13 May 2016