First Mortgage Investments Pty Limited v Naylor
[2015] NSWSC 1142
•06 August 2015
Supreme Court
New South Wales
Medium Neutral Citation: First Mortgage Investments Pty Limited v Naylor [2015] NSWSC 1142 Hearing dates: 6 August 2015 Decision date: 06 August 2015 Jurisdiction: Common Law Before: Button J Decision: (1) The execution of the writ of possession currently with the Sheriff's Office Bathurst for the land contained in folio identifier XX/XXXX and XX/XXXX, being the land situated at and known as X XXXX XXXX, Perthville in the State of New South Wales is stayed until 9 am on 1 September 2015.
Catchwords: REAL PROPERTY – possession of land – application to stay execution of writ for possession – possibility of refinance – execution of writ for possession stayed Category: Procedural and other rulings Parties: First Mortgage Investments Pty Limited (Plaintiff)
Sandra Ann Naylor (Defendant)Representation: Counsel:
Solicitors:
Gadens Lawyers (Plaintiff)
In person (Defendant)
File Number(s): 2014/193045
ex tempore Judgment
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This is an application for stay of a writ for possession of land at Perthville in Central West of New South Wales.
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The matter came before me in the Duty List ex parte at 10.20 this morning, when Mrs Naylor came before me, with her husband, unrepresented by a lawyer. I was not prepared to do anything ex parte other than extend the stay of a writ that I was told would be executed at 11 am, until 3 pm today. My Associate took urgent steps to inform the plaintiff in the substantive proceedings of the application, and Mr Foley appeared for the plaintiff at 2 pm today at very short notice.
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I have been told that the writ will now not be executed until 10am tomorrow.
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My understanding of the background is this. The Naylor family has been associated with the property for many years. Pig farming is one the main activities there. Mr Naylor and his brother overextended themselves with regard to investments at another location, and the financial affairs of the family began to unravel. In the meantime, a man who was subsequently murdered became indirectly associated with the property, to the general detriment of the family's position.
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Many years ago, mediation was attempted with regard to a substantial outstanding loan owed to the plaintiff. It was successful, but regrettably the defendant was incapable of fulfilling the agreement into which she entered.
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After that mediation effort in late 2013, the plaintiff commenced proceedings in this Court in June 2014. Refinance was being spoken of even then, over a year ago.
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In November 2014 a defence was filed, but the plaintiff submitted that it disclosed no true defence. Summary judgment was sought in February this year by the plaintiff.
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The proceedings culminated with consent orders entitling the plaintiff to possession and a substantial sum of money. That was on 16 April 2015; by agreement, the orders were put off for three weeks. It seems there has been no progress in the repayment of that debt since that time.
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Mrs Naylor provided me with an overview of the history that became exhibit B, which was supplemented by the submissions of Mr Foley. She also provided me with a copy of an email from a Mr McDonnell, who seems to be a mortgage broker. It was annexed to her affidavit of today's date. To state things succinctly, Mr McDonnell expresses an optimism that there can be refinance, not only with regard to the property in question, but also based on a mortgage over the property of Mrs Naylor senior, who lives close by.
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It can be noted that Mr McDonnell, in his email of yesterday, sought two weeks. He also expressed the opinion in that email that a stay of the writ for that period by this Court was automatic, an opinion that is thoroughly incorrect.
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Mr Foley submitted that his client has behaved reasonably and sought to have its loan repaid without enforcing its security. He submitted that there has been talk of refinance for many, many months, but none forthcoming. He also submitted that, even at this late stage, I was provided with a document that became exhibit A and which is four months out of date. In short, he submitted that the time has come for realities to be faced.
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Mrs Naylor asked only for a stay of the writ until the end of August, based upon her confidence that there can be a refinance.
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I must say that my mind has wavered. It is very significant that all parties agree that the debt now outweighs the value of the secured property substantially. Interest is accruing at a significant daily rate. Every day of further delay - in the context of a problem that in truth has existed for approaching two years - simply means financial prejudice to the plaintiff.
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To be weighed against that is the fact that the family has had a longstanding relationship with the land; that I accept (on the extremely limited material placed before me) that this whole problem seems to have arisen from financial incompetence rather than dishonesty; that no writ of execution has been postponed in the past; and that the email of Mr McDonnell, whilst hardly certain or conclusive, provides some grounds, perhaps, for guarded optimism.
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Seeking to weigh up everything, I think that it is appropriate that I order that the writ not be executed before 9 am on 1 September 2015.
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A number of things may be noted.
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First, I regard this as the absolute last stage of a long-running problem that must come to an end.
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Secondly, the Naylors must commence to make arrangements to leave before that date, as against the possibility that refinance will not be available.
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Thirdly, a copy of this judgment, including my strongly expressed views, will remain on the court file for the reference of any subsequent judicial officer who has placed before him or her an application for a further stay of the writ for possession.
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Finally, the Naylors must pay the costs of the plaintiff of today. There is no need for me to order that formally, as the plaintiff is protected by way of its security in any event.
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I make the following order:
The execution of the writ of possession currently with the Sheriff's Office Bathurst for the land contained in folio identifier XX/XXXX and XX/XXXX, being the land situated at and known as X XXXX XXXX, Perthville in the State of New South Wales is stayed until 9 am on 1 September 2015.
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Decision last updated: 14 August 2015
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