Lava Limited v Avery - [2009] NSWSC 177

CITATION: Lava Limited v Avery [2009] NSWSC 177

HEARING DATE(S): 18 March 2009

JUDGMENT DATE :
18 March 2009

JUDGMENT OF: Price J at 1

EX TEMPORE JUDGMENT DATE: 18 March 2009

DECISION: 1. There be judgment for the plaintiff as against the defendant for the possession of the whole of the land comprised in folio identifier 31/SP70153, being the property known as Apartment 901, Parbury Apartments, 1 Pottinger Street, Walsh Bay, New South Wales. 2. The plaintiff be given leave to issue a writ of possession. 3. The execution of the writ of possession be stayed for a period of six months from today, namely by 4pm on Friday 18 September 2009. 4. The cross-claim be dismissed. 5. The stay of execution of the writ of execution is conditional upon: (a) The defendant commencing proceedings on or before 27 March 2009 against Saree Holdings Limited seeking orders for the discharge of mortgage dealing number AD131541 (the redemption proceedings);
(b) The defendant give an undertaking to the court that she will prosecute the redemption proceedings diligently and without delay. 6. The sum of $20,000 paid into court by the plaintiff as security for the costs of the defendant in accordance with orders made by the registrar on 16 July 2008 be released, together with accrued interest, forthwith to the plaintiff. 7. Liberty to either party to apply on three days' notice be granted.

CATCHWORDS: Possession proceedings - application for adjournment - order for possession - grant of stay on terms

LEGISLATION CITED: Civil Procedure Act 2005 s 56, s 57, s 58

CATEGORY: Procedural and other rulings

PARTIES: Lava Limited
Leanne Maree Avery

FILE NUMBER(S): SC 13418/07

COUNSEL: M Condon (Plaintiff)
R Alkadamani (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISON

PRICE J

18 March 2009

13418/07 Lava Limited v Leanne Maree Avery
JUDGMENT

1 HIS HONOUR: Leanne Maree Avery (the defendant), by a notice of motion filed in court yesterday, seeks orders that the hearing of the proceedings be vacated on such terms, if any, as the court deems just. A hearing of the proceedings had been listed to commence before me yesterday and then for the following two days.

2 The defendant is the registered proprietor of the whole of the land contained in certificate of title folio identifier 31/SP70153, being the property known as Apartment 901, Parbury Apartments, 1 Pottinger Street, Walsh Bay (the property). On 19 May 2006 the defendant entered into a loan agreement with Lava Limited (the plaintiff). Schedule B to the loan agreement disclosed that the principal sum of $NZ1,500,000 was to be repaid on or before the final payment date, which was defined to mean 19 May 2007. The loan was to be secured by a first registered mortgage on the property. The mortgage was registered on the title of the property which identifies the defendant as the mortgagor and the plaintiff as the mortgagee. The mortgage was allocated dealing number AC441383.

3 By a statement of claim…

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: [2009] NSWSC 177
Decision Date: 18 March 2009

CaseChat Overview and Summary

The matter of Lava Limited v Avery was heard in the Supreme Court of Victoria. Lava Limited, the plaintiff, sought an order for possession against Avery, the defendant, in relation to a residential property. The defendant applied for an adjournment of the proceedings to allow for the resolution of a dispute regarding the property's lease. The court was required to determine whether to grant the adjournment and, if so, on what terms.

The legal issues before the court were whether the dispute over the lease could be resolved within a reasonable timeframe and, if so, whether the adjournment should be granted to allow for this. The court considered the factors relevant to granting an adjournment, including the likelihood of success in resolving the dispute, the potential prejudice to the plaintiff, and the public interest in the prompt resolution of the matter.

In determining the application, the court found that the dispute over the lease was likely to be resolved within a reasonable timeframe and that the adjournment would not cause significant prejudice to the plaintiff. The court also found that it was in the public interest to allow the dispute to be resolved, as it would avoid the need for a potentially unnecessary possession proceeding. The court therefore granted the application for an adjournment on terms, including a requirement that the parties attempt to resolve the dispute in good faith and that the plaintiff be kept informed of any developments. The court also ordered that if the dispute was not resolved within a specified timeframe, the plaintiff's application for possession would be reinstated.

The court's final orders were that the defendant's application for an adjournment be granted on the terms outlined above and that a stay of the possession proceedings be granted until the specified timeframe had elapsed, or until the dispute was otherwise resolved. The parties were directed to attend a directions hearing to update the court on the status of the dispute.

Orders