Middlemass v Leishman

[2021] NSWSC 898

Supreme Court

New South Wales

Medium Neutral Citation:	Middlemass v Leishman [2021] NSWSC 898
Hearing dates:	22 July 2021
Date of orders:	22 July 2021
Decision date:	22 July 2021
Jurisdiction:	Common Law
Before:	Lonergan J
Decision:	Orders set out at [13]
Catchwords:	PROCEDURE – civil – stay of execution of writ of possession – short stay granted on hardship grounds
Category:	Procedural rulings
Parties:	Maree Janice Middlemass (Plaintiff) Kathleen Jeanne Leishman (Defendant)
Representation:	Counsel T Rogers (Plaintiff) D Yakenian (Defendant) Solicitors Baccus Legal (Plaintiff) Legal Edge Australia (Defendant)
File Number(s):	2020/186193
Publication restriction:	Nil

REVISED EX TEMPORE Judgment

1. HER HONOUR: This is an application by the defendants for a stay of a writ for possession of land that was issued in September 2020.

2. The background to the proceedings has some complexity, but for the purposes of this judgment I note that a statement of claim was issued by the plaintiffs on 23 June 2020, seeking possession of property at 24 Memorial Drive, The Hill, in New South Wales, which I understand to be in the Newcastle area, as well as orders for judgment in the sum of $1.6 million, being the total of funds advanced pursuant to a mortgage signed on 30 August 2019, as well as interest arrears on the sum advanced, and costs.

3. The sum advanced was due to be repaid in February 2020, but was not, although I understand some $40,000 has been paid to the plaintiffs since October last year in an effort to stave off previous threatened activity by the Sheriff's Office to evict the family from the family home.

4. It seems that the initial writ was issued on 23 September 2020, but the plaintiffs forbore their rights in that respect because the defendants paid $20,000 to them in late 2020. The eviction was then listed again for 14 April 2021, and again the plaintiffs were prepared to allow that to be postponed on arrangements with the defendants.

5. It seems that there were orders made in April 2021 for the defendants to serve evidence in support of further activity that they said they were undertaking to either pay the debt or make appropriate arrangements, and again, the eviction was stayed in May 2021 on the basis of a promise to settle the matter within seven days. This did not happen, and again, eviction was imminent in June 2021, and that was delayed again.

6. In early July 2021, it seems that eviction was to take place on 5 July, but due to matters relating to the COVID-19 infection prevalence and concerns associated with that, the Sheriff's Office was not carrying out evictions, and a further few weeks of grace was extended to the defendants because of that situation.

7. At the moment, eviction is scheduled to take place at ten o'clock tomorrow.

8. Today, two further affidavits were filed on behalf of the defendants. Mr Rogers of counsel, who appears for the plaintiffs, has properly and appropriately not taken objection to the affidavits, but points out that they are late, not served in accordance with the timetable that was laid down by the Court earlier, and that the affidavits raise material that his clients have not had the opportunity to investigate. These points are all validly made.

9. I note, however, that amongst the material (some of which is somewhat confusing as to what is being suggested is the problem with moving out of the premises related to COVID health regulations and matters of that nature) is the fact that there are three children living in the premises, one of whom is sixteen years old and about to embark on his trial HSC exams. I am informed there are also two other children, boys aged fifteen and ten.

10. It seems to me that given the prevalence of COVID-19 infection in various locations in New South Wales and considering what I can take judicial notice of in respect of the infectious nature of the Delta variant that is currently populating places in New South Wales, I have a real concern about the hardship inflicted on a family forced to vacate their home in this current pandemic climate.

11. Having said that, it is the responsibility of the defendants, given the multiple chances they have been extended by the plaintiffs and by the Court to organise themselves and to safely accommodate their family somewhere else while they get their financial affairs in order.

12. Given all those considerations, I am of the view that a very short stay of the execution of the writ of possession should be extended to the defendants of 14 days. The matter will then need to come back before the Court to deal with the other aspects of the proceedings.

13. Accordingly:

1. I order that the writ of possession of property at 24 Memorial Drive, The Hill, New South Wales, 2300, is stayed until 5pm on Thursday 5 August 2021.

2. I order that the matter be listed for directions before the Registrar at 9am on Friday, 29 October 2021.

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Decision last updated: 23 July 2021