Elizabeth Mina Benz v P D Mortgage Services Pty Ltd

Elizabeth Mina Benz sought to stay the execution of a writ of possession of land pursuant to Order 45 of the Uniform Civil Procedure Rules 1999 (Qld). The land was subject to a mortgage held by P D Mortgage Services Pty Ltd (PDMS). Benz had defaulted on the conditions of an order permitting her to defend an action for possession of the land. White J heard the application and dismissed it. Benz had filed a notice of appeal against the dismissal of an earlier application for a statutory order of review of the decision. This was heard on 2 February 1999 and White J dismissed the application on 10 February 1999. The Federal Court had earlier dismissed Benz's claim against PDMS and denied her an extension of time to seek leave to appeal that decision. The Full Federal Court dismissed her appeal on 19 February 1999. Benz filed a notice of motion seeking a stay of the writ of possession on 9 March 1999. White J considered the submissions of Benz's agent, Mr Howard, who made submissions on the merits of the dispute. The submissions were that the stay of execution should be granted relying on Order 45 of the Rules or on the merits of the case. Benz alleged that she and Mr Howard had been induced to sign a mortgage over her land by duress and that they had not received the loan funds. Benz and Mr Howard had commenced proceedings in the Federal Court against PDMS seeking relief under the Trade Practices Act. PDMS had commenced its action for possession of the land in this court. Benz's appeal against the dismissal of the application for a statutory order of review was dismissed on the basis that it was unlikely to succeed and the application for a stay of the writ of execution was dismissed on the basis that it was not sufficient to stay the operation of the writ of execution.