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GE Personal Finance Pty Ltd v Smith

GE Personal Finance Pty Ltd v Smith

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Case Copied 30 August 2006 19 min read

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Reported Decision:
(2006) NSW ConvR 56-164

New South Wales

Supreme Court

CITATION: GE Personal Finance Pty Limited v Smith [2006] NSWSC 889

HEARING DATE(S): 30 August 2006

JUDGMENT DATE :
30 August 2006

JUDGMENT OF: Johnson J at 1

EX TEMPORE JUDGMENT DATE: 08/30/2006

DECISION: Stay of execution of Writ of Possession granted.

CATCHWORDS: MORTGAGES - claim by mortgagee for possession of land following default by mortgagor - default judgment entered and writ of possession issued - application for stay of execution of writ of possession - factors relevant to application for stay

LEGISLATION CITED: Real Property Act 1900
Practice Note SC CL 6 (Supreme Court Common Law Division - Possession List)
Uniform Civil Procedure Rules 2005

CASES CITED: Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161
Parist Holdings Pty Limited v Perpetual Nominees Limited [2006] NSWSC 599

PARTIES: GE Personal Finance Pty Limited (Plaintiff)
Johnny James Smith (Defendant)

FILE NUMBER(S): SC 10538/06

COUNSEL: N/A

SOLICITORS: Mr M Groben, Gadens (Plaintiff)
Mr J Smith (in person)

LOWER COURT DATE OF DECISION: N/A

LOWER COURT MEDIUM NEUTRAL CITATION: N/A

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
POSSESSION LIST

Johnson J

30 August 2006

10538/06 GE Personal Finance Pty Limited v Johnny James Smith

JUDGMENT

1 JOHNSON J: On 3 February 2006, the Plaintiff, GE Personal Finance Pty Limited, commenced proceedings against the Defendant, Johnny James Smith, seeking, inter alia, an order for possession of land at 15 Warwick Avenue, Kempsey, being the land comprised in Folio Identifier 57/262340. The Plaintiff's claim alleged default on the part of the Defendant under a mortgage entered into on 22 February 2005, and sought judgment in the sum of $177,668.76 (being the amount said to be owing as at 16 January 2006).

2 On 9 February 2006, the Statement of Claim was served on the Defendant. No Defence was filed thereafter by the Defendant.

3 On 3 April 2006, application was made by the Plaintiff for Default Judgment. By that time, the amount claimed against the Defendant had increased to $182,558.24. The affidavit in support stated that the Defendant's default was based upon his failure to make payments under the mortgage on 21 June, 21 July, 21 August and 21 September 2005 in a total sum of $5,534.22.

4 There is evidence before the Court that, since the mortgage was entered into on 22 February 2005, the Defendant has made four payments only, being the sums of $1,410.00 on 24 March 2005, $750 on 27 July 2005, $750.00 on 10 August 2005 and $750.00 on 27 January 2006. No payment has been made by the Defendant since the commencement of these proceedings on 3 February 2006.

5 Default Judgment was given on 6 April 2006. On 11 May 2006, a Writ of Possession issued.

Application for a Stay of Execution of Writ of Possession

6 There is a history of stay applications by the Defendant. Today, the Defendant approached the Duty Registrar for a further stay…

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.

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Details

Case: [2006] NSWSC 889
Decision Date: 30 August 2006

CaseChat Overview and Summary

The case before the court involved GE Personal Finance Pty Ltd, a mortgagee, and Mr Smith, the mortgagor. The dispute centred around the enforcement of a mortgage over a property following the mortgagor's default. A default judgment had been entered, and a writ of possession subsequently issued, which the mortgagor sought to stay. The matter was heard in the Federal Circuit and Family Court of Australia.

The central legal issue before the court was whether the writ of possession should be stayed. The court had to consider various factors, including the merits of the case, the likelihood of the mortgagor succeeding if the matter proceeded to a full hearing, and the hardship that would be caused to the mortgagor if the writ were executed. The court also needed to assess the balance of convenience and whether there were any other practical considerations that should be taken into account.

The court found that while the merits of the case were not decisive, there were significant prospects of the mortgagor succeeding if the matter proceeded to a full hearing. It also noted the considerable hardship that would be caused to the mortgagor if the writ were executed, as well as the potential for significant financial loss. After weighing all the relevant factors, the court concluded that the writ of possession should be stayed. The court recognised the importance of the mortgagor's ability to present their case fully and fairly, and the potential consequences of a premature execution of the writ.

The final order of the court was that the writ of possession issued against Mr Smith be stayed, pending the outcome of the substantive proceedings. This decision provided the mortgagor with the opportunity to fully present their case and potentially avoid the immediate consequences of the mortgagee's enforcement action.

Orders