Grayridge Pty Ltd v Cousens

[2000] VSC 343

SUPREME COURT OF VICTORIA
PRACTICE COURT	Not Restricted

No. 7373 of 1997

GRAYRIDGE PTY. LTD.	Plaintiff
v.
SHIRLEY YVONNE COUSENS	Defendant

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 AUGUST 2000
DATE OF JUDGMENT:	24 AUGUST 2000
CASE MAY BE CITED AS:	COUSENS v. GRAYRIDGE PTY. LTD.
MEDIUM NEUTRAL CITATION:	[2000] VSC 343

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CATCHWORDS:      Order for possession – Stay of order pending application for special leave to appeal to High Court – Prejudice to plaintiff if stay granted – Stay refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	R. Cook	S.V. Winter & Co.
For the Defendant	D. Fitzgibbon	Waters O'Brian

HIS HONOUR:

1. The defendant in this case, Shirley Yvonne Cousens, is the registered proprietor of the property situate at and known as 50 Warringa Road, Frankston.  By an instrument of mortgage dated 9 July 1997, the defendant mortgaged the property to the plaintiff, Grayridge Pty. Ltd.

1. On 8 October 1997, the plaintiff instituted a proceeding in this court alleging that the defendant was in breach of terms of the mortgage and seeking possession of the property pursuant again to the terms of the mortgage and pursuant to s.78(1)(b) of the Transfer of Land Act 1958.

1. After a hearing which extended over some four days and on 3 June 1999, O'Bryan, J., found in favour of the plaintiff and entered judgment for possession by it of the property.

1. The defendant appealed from that judgment to the Court of Appeal.  However, on 2 June of this year the Court of Appeal dismissed the appeal.

1. Counsel for the plaintiff informed me during the course of the hearing today that at the time the Court of Appeal dismissed the defendant's appeal, it informed the defendant that in the event she intended to seek application for special leave to appeal to the High Court, that it could reconvene the following week to consider any application she might make for a stay of the order for possession made in favour of the plaintiff in respect of the property.

1. The defendant did not avail herself of that opportunity and now makes application to me for a further stay, both of the order made by the Full Court and the judgment of O'Bryan J, pending the hearing of an application for special leave to appeal being made to the High Court.

1. In so far as that application itself is concerned, I note that the application was filed approximately six weeks out of time.  No explanation has been provided to me for the defendant's failure in that regard, nor has any explanation been provided to me for the delay in the making of the present application, which could have been made to the Court of Appeal of this court within the week following the delivery of its judgment on 2 June.

1. A court has a discretion as to whether it will grant a stay in circumstances such as these.  Perhaps the principal matter relied upon by the plaintiff in opposition to the application is the fact that there is also a first mortgage over the property.  At the present time no interest is being paid in respect of either of the mortgages over the property.  It is agreed by counsel for the parties that the amounts outstanding under the two mortgages total $847,000, whereas it was said in a valuation that the value of the property is only some $750,000.  It would follow from that, that if the property was sold today for $750,000, leaving aside such matters as agents' commission and the like, the plaintiff, being a second mortgagee, would be out of pocket to the tune of approximately $100,000.

1. The longer this matter goes, of course, without interest being paid under the mortgages, so much larger will be its ultimate loss, because of course the non-payment of interest has the practical effect of eroding the security which the plaintiff has in respect of its second mortgage.

1. A further factor to be borne in mind in considering the application is that the defendant is not resident in the property.  The property is presently occupied by some third person and his family.

1. Bearing those various matters in mind, I do not consider that it is now appropriate to grant any further stay.  The application in that regard therefore will be refused.

1. I order that the defendant pay the plaintiff's costs of the application.

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