GKQ Mortgages Pty Ltd v Ahmad Salim Mouhajar

GKQ Mortgages Pty Ltd, a finance company, sought possession of a property from Ahmad Salim Mouhajar, who had defaulted on mortgage repayments. The dispute centred on the enforcement of a court judgment for possession and subsequent agreements concerning the payment of additional sums. The case was heard in the Supreme Court of Victoria. The legal issues revolved around whether the plaintiff was precluded from exercising its legal right to possession due to a subsequent agreement that the defendants would pay additional moneys, and whether the defendants' failure to meet these obligations justified the stay of the writ for possession.

The court examined the terms of the original judgment, which allowed the defendants to avoid possession by paying certain sums by specified dates. When the defendants failed to meet these deadlines, the plaintiff sought to enforce the judgment. However, the defendants subsequently agreed to pay additional moneys by another date, which they also failed to meet. The court held that there was no reason to prevent the plaintiff from enforcing its legal right to possession. Nevertheless, when the defendants later undertook to pay the additional sum on the day of the hearing, the court found that it was seriously arguable that the plaintiff was no longer entitled to possession. Consequently, the writ for possession was stayed.

The court's reasoning was grounded in the principle that while the plaintiff had the right to enforce the judgment, the changed circumstances presented a seriously arguable case that altered the plaintiff's entitlement to possession. The court's decision highlighted the importance of considering all relevant factors, including subsequent agreements and the defendants' undertakings, when determining whether to grant or stay a writ for possession.