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

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

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: [2023] NSWSC 1244
Decision Date: 10 October 2023

CaseChat Overview and Summary

The case involved GI 370 Pty Ltd, the plaintiff, and O'Neill, the defendant. The plaintiff sought to recover possession of a property, and the defendant sought to delay the execution of the writ of possession. The dispute was heard by the Supreme Court of Victoria. The primary issue before the court was whether a limited stay should be granted to the defendant to allow for the settlement of the sale of the property. The court had to balance the rights of the plaintiff to recover possession with the defendant's right to complete the sale.

The court considered several factors in deciding whether to grant a stay. These included the likelihood of the defendant completing the sale within a reasonable timeframe, the extent to which the plaintiff would be prejudiced by a delay in possession, and the terms of any agreement between the parties. The court noted that the defendant had made representations to the plaintiff that the sale would be settled within a short period, and that the plaintiff had relied on these representations in delaying the execution of the writ of possession. However, the court also noted that the plaintiff had a strong interest in recovering possession of the property as soon as possible.

The court ultimately decided to grant a limited stay to the defendant. The stay was limited to a period of 28 days, during which the defendant had to complete the sale of the property. The court held that the plaintiff's interest in recovering possession of the property was significant, but that it was not so compelling as to outweigh the defendant's right to complete the sale. The court also noted that the plaintiff had not suffered significant prejudice as a result of the delay in possession, as the property was vacant and there was no pressing need for the plaintiff to occupy it.

The court ordered that the writ of possession be stayed for a period of 28 days, during which the defendant had to complete the sale of the property. The court also ordered that if the sale was not completed within the 28-day period, the stay would be lifted and the plaintiff could execute the writ of possession. The court emphasised that the stay was limited in duration and that the plaintiff's rights to recover possession of the property remained intact.

Orders