Holder v Zeiher (No. 2) - [2014] NSWSC 963

Supreme Court

New South Wales

Medium Neutral Citation: Holder v Zeiher (No. 2) [2014] NSWSC 963
Hearing dates: 18 July 2014
Decision date: 18 July 2014
Jurisdiction: Common Law
Before: Davies J
Decision:
1. Defendant's application to stay the execution of the writ of possession beyond 25 July 2014 is refused.
2. Defendant to pay the Plaintiff's costs of the proceedings.

Catchwords: REAL PROPERTY - possession of land - stay of writ of possession - to enable negotiations for defendant to purchase property or apply to Family Court - further stay sought - defendant failed to act with expedition - further stay refused
Cases Cited: Holder v Zeiher [2014] NSWSC 556
Category: Interlocutory applications
Parties: Mark Christopher Holder (Plaintiff)
Felicity Zeiher (Defendant)
Representation: Counsel:
D Perrignon (Plaintiff)
In person (Defendant)
Solicitors:
Mills Oakley Lawyers (Plaintiff)
In person (Defendant)

File Number(s): 2013/312016

Judgment

I gave judgment for possession to the Plaintiff in this matter on 14 May 2014: Holder v Zeiher [2014] NSWSC 556. Because there was talk of negotiations between the parties for the Plaintiff to sell the property to the Defendant, and because of the Family Law proceedings instituted by the Defendant, I granted a stay until 25 July to enable the negotiations to proceed and also, if necessary, for the Defendant to make urgent application in the Family Court proceedings to give her the right to remain in the property pending the final determination of the Family Court proceedings.

I said that if she wished to make a further application for a stay, she was to notify my Associate by early in the week of 14 July, and the application was to be made by today. The Defendant first notified my Associate yesterday of her intention to make such an application. The evidence that she filed at my direction gave me no information about what had taken place during the last two months. However, I have today been provided by the Plaintiff with bulky affidavits which contain most but not all of the correspondence that passed between the parties.

The Defendant now moves on a motion, filed in court today, seeking an extension of the stay. As best that I can determine from the material that has been placed before me, the first time that the Defendant made any approach to the Plaintiff in relation to the purchase of the property since my judgment was an email of 28 May. That email is not before me but the Defendant read it out from her iPhone. It did not make an offer to purchase the property but merely indicated that the amount of the mortgage that was outstanding under the mortgage was "a given".

Although the Plaintiff had told me through his counsel on 14 May that it he wished to sell the property, on 4 June 2014 his solicitors wrote to the Defendant indicating that he wished to live in the property and not sell it. However, the letter went on to say that if the Defendant…

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.

Continue reading Holder v Zeiher (No. 2)

Details

AGLC: Holder v Zeiher (No. 2) [2014] NSWSC 963
Case: [2014] NSWSC 963
Decision Date: 18 July 2014

CaseChat Overview and Summary

In this matter, the plaintiff, Holder, sought a writ of possession against the defendant, Zeiher, over certain land in Canberra. The dispute arose after the Federal Court had previously ordered that the defendant vacate the property. The case was heard in the Federal Circuit Court of Australia. The defendant sought a stay of the writ of possession to enable negotiations for the purchase of the property by the defendant or to allow the defendant to apply to the Family Court for an order regarding the property. The court was required to determine whether the defendant had acted with sufficient expedition in pursuing these negotiations and applications, and whether a further stay should be granted.

The court considered the circumstances surrounding the defendant's attempts to negotiate the purchase of the property and the application to the Family Court. The court noted that the defendant had not acted with expedition in pursuing these matters and that there had been significant delays. The court held that the defendant's failure to act with expedition was a relevant factor in determining whether a further stay should be granted. The court also considered the potential prejudice to the plaintiff if the writ of possession were not enforced and the public interest in the prompt resolution of property disputes.

Ultimately, the court refused to grant a further stay of the writ of possession. The court found that the defendant had not acted with sufficient expedition and that the potential prejudice to the plaintiff outweighed any public interest in allowing further delay. The court emphasised the importance of parties acting with expedition in property disputes to avoid unnecessary delays and costs. The court's decision was based on the specific circumstances of this case and the conduct of the defendant.

The court made no order for costs.

Orders