GI 370 Pty Ltd v O'Neill

[2023] NSWSC 1244

Supreme Court

New South Wales

Medium Neutral Citation:

GI 370 Pty Ltd v O’Neill [2023] NSWSC 1244

Hearing dates:

10 October 2023

Date of orders:

10 October 2023

Decision date:

10 October 2023

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

1. Stay the execution of the writs of possession until 9am on 1 November 2023.

2. The plaintiff is to provide copies of all tax invoices issued by the solicitors for the plaintiff in respect of this matter, which may be redacted on the grounds of legal professional privilege, to the defendant prior to 9am on 29 October 2023.

Catchwords:

LAND LAW — Possession of land – execution or stay of writ of possession – settlement date for sale of property – limited stay granted

Cases Cited:

GE Personal Finance Pty Ltd v Smith [2006] NSWSC 889

Category:

Principal judgment

Parties:

GI 370 Pty Ltd (Plaintiff)
Patricia Mary O’Neill (Defendant)

Representation:

Solicitors:
Farrar Lawyers (Plaintiff)
In person (Defendant)

File Number(s):

2022/384601

Publication restriction:

None

revised ex tempore JUDGMENT

1. This matter comes before me by way of a notice of motion filed by the first defendant seeking a stay of the writs of possession obtained by the plaintiff, a finance company, over two pieces of property situated in the Hunter Valley named “Pokolbin” and “Wybong”.

2. As set out in the statement of claim filed on 21 December 2022, the plaintiff entered into an agreement with a borrower, Australian Premium Wine Exports, which were guaranteed by the first defendant, Patricia O'Neill, and the second defendant, Yarraman Property, to advance funds to the borrower.

3. The facility was a short-term facility for only 6 months. The borrower did not repay the money as required and the defendants did not honour their obligations as guarantors to repay the money. The plaintiff thus commenced proceedings in this Court seeking judgment and immediate possession of both properties.

4. Ms O'Neill lives at the Pokolbin property. The Wybong property was formerly used as a vineyard.

5. The defendants filed a defence. The defence was struck out. The plaintiff sought to enforce its entitlements including issuing a writ of possession on 28 August 2023.

6. The parties have previously entered into an agreement to stay enforcement of the orders obtained on the basis that Ms O'Neill would be selling the Wybong property. Indeed, she entered into an agreement for sale, which was due for completion in September 2023. The sale did not complete at that time. Hence, the plaintiff sought to enforce the judgment it had obtained and sought vacant possession of both properties.

7. The defendants sought a further stay. Orders were made for the defendants to file a motion, with affidavit in support, by 3 October 2023. Although this is disputed, Mr Farrar says he was not served with the motion and affidavit in support which was filed.

8. However, I have a handwritten motion seeking a stay of the writ of possession until settlement of the Wybong property. There is also an affidavit from Ms O'Neill stating that the property will be sold and that the writ of possession is on her home.

9. On the hearing of the matter today, Ms O'Neill provided me with a bundle of additional documents which, unfortunately, appear not to have been served on the plaintiff or, at least, not shown to Mr Farrar. In particular, Ms O'Neill relies on a letter from her solicitor, Reeve Law, dated 19 October 2023 which purports to confirm that settlement has been set down in PEXA for 30 October 2023. Her solicitor explains that the reason for the settlement delay was confusion on the part of the purchaser's lender and this necessitated the submission of an entirely new loan application with approval timelines consequently being reset.

10. I am also in receipt of correspondence and account statements from Ms O'Neill showing the loan payout figure, as at 11 September 2023, as being $1,693,681.74. The sale price is said to be $1.8 million.

11. The plaintiff opposes the granting of any further stay on the basis that this short-term facility commenced in March and was due to be repaid in September 2022. The plaintiff has spent now 12 months trying to recover the full amount of the loan and/or take possession of the property. The plaintiff says that there was an agreement that the appointment of a receiver and manager to take control of the property now sought to be sold, that is the Wybong property, was deferred so that sale could take place in September. That has not occurred. The receiver and manager has been reappointed and Mr Farrar says that the receiver is receiving offers from potential purchasers of the property.

12. The plaintiff says that the whole exercise is proving to be very costly and there must come a point in time where the defendants have had sufficient opportunity to sell the property. The plaintiff says there is considerable uncertainty about whether this proposed sale due for completion on 30 October 2023 will go ahead.

13. As is well-known, one of the reasons that a stay might be granted is if the defendants have organised for the property the subject of the application to be sold: see GE Personal Finance Pty Ltd v Smith [2006] NSWSC 889.

14. Mr Farrar's submissions are well made in that what was promised by the defendant previously has not eventuated. There can be no certainty that the proposed sale will go ahead on this basis.

15. However, it is not just Ms O'Neill who is making promises to the Court that she will do her best to ensure the sale goes ahead. As I have identified, there is a letter from her solicitors nominating a date for settlement and providing an explanation as to why the settlement has been delayed. Further, Ms O'Neill has endeavoured over the past 12 months to repay some of the money owing through sale of another property at Noosa.

16. Whilst it is a matter for the plaintiff whether it considers that it will be in a better or worse position if this stay is granted, in my view, it is difficult to see how the plaintiff could be worse off (other than, perhaps, some additional legal costs), by allowing a stay for approximately a further two and a half weeks.

17. There is a purchaser and there is a date for settlement and the amount of the sale will be sufficient to cover the amount owing to the plaintiff. In those circumstances, I am satisfied that there should be a further stay as sought by the defendants. That stay should be until 1 November 2023.

18. I emphasise, for the benefit of Ms O'Neill in particular, that this is really the last chance for her. The processes of the Court, rightly or wrongly, have been used for a period of 12 months – that is, 12 months after the expiry of the finance facility – to get to this point. I understand that one of the properties is Ms O'Neill's home, but if this sale does not go ahead on 30 October, then, subject to any exceptional circumstances which might arise on any further application, there will be no further stay and the plaintiff will be entitled to force its rights over both properties.

19. In the circumstances, I order that there be a stay of the execution of the writs of possession on the properties until 9.00am on 1 November 2023. I confirm that the stay will expire at that time.

20. I also order that, as requested by Ms O’Neill, the plaintiff provide copies of all tax invoices rendered by their solicitors for which the plaintiff asserts the defendants are liable to reimburse the plaintiff. The plaintiff may redact any parts of the invoices which may be subject to legal professional privilege.

21. The defendant’s motion is otherwise dismissed.

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Decision last updated: 23 October 2023