Nichols Constructions Pty Ltd v Elphick (No 3) - [2016] NSWSC 818

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Nichols Constructions Pty Ltd v Elphick (No 3) [2016] NSWSC 818
Hearing dates: 16 June 2016
Date of orders: 20 June 2016
Decision date: 20 June 2016
Jurisdiction: Common Law
Before: McCallum J
Decision:
Application to stay execution of writ of possession refused

Catchwords: PROPERTY – proceedings for possession – application by husband of mortgagor for stay of execution of writ – where proceedings settled at mediation on terms that mortgagor would consent to possession if payment not made by nominated date – where husband undertook at the mediation not to make any claim to any interest in the property – husband subsequently making claim to an interest in the property – whether stay should be granted pending determination of that claim
Cases Cited: Aboriginal Housing Co Ltd v Munro [2015] NSWSC 1155
DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties [1980] 1 NSWLR 510
Horrobin v Australia and New Zealand Banking Group Ltd (1996) 40 NSWLR 89
Nichols Constructions Pty Ltd v Elphick [2015] NSWSC 940
Nichols Constructions Pty Ltd v Elphick [2015] NSWSC 1732
Yeshiva Properties No 1 Pty Ltd v Lubavitch Mazal Pty Ltd (No 3) [2003] NSWSC 752
Category: Procedural and other rulings
Parties: Nichols Constructions Pty Ltd (Plaintiff)
Vickie Maree Elphick (Defendant)
Ken Elphick (applicant)
Representation:
Counsel:
AJ McInerney SC, D Macfarlane (Plaintiff)
T Hall (Defendant)
Solicitors:
Wilson & Co Lawyers (Plaintiff)
Hall Partners Pty Ltd (Defendant)

File Number(s): 2014/333687
Publication restriction: None

Judgment

HER HONOUR: These are proceedings for possession of a residential property at Cronulla. The proceedings are brought by the mortgagee of the property, Nichols Constructions Pty Ltd. The mortgagor and registered proprietor of the property is Mrs Vicki Elphick. A writ of possession has been issued against her but not executed. This judgment determines an application by Mrs Elphick’s husband, Mr Ken Elphick, to stay the execution of the writ pending the determination of separate proceedings brought by him in this Court against, among others, Mrs Elphick and the mortgagee. Alternatively, Mr Elphick seeks a stay on hardship grounds in his capacity as an occupier of the property and on behalf of its other occupiers (who include Mrs Elphick).
Mr Elphick is not a party to these proceedings and has not sought to be joined. As hearing time was limited, the application proceeded on the common premise that the question whether he is entitled to the relief sought should be determined according to the merits of his contentions on the understanding that the question of standing would follow that determination.

Circumstances in which the application is brought

The mortgage sought to be enforced by Nichols Constructions was granted to secure a loan negotiated between Mr Elphick and the principal of Nichols Constructions, Mr Leslie Nichols. At the time of those negotiations, Mr Nichols and Mr Elphick were engaged in a property development and subdivision in the area of Laidley in the State of Queensland. Nichols Constructions was…

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: [2016] NSWSC 818
Decision Date: 20 June 2016

CaseChat Overview and Summary

Nichols Constructions Pty Ltd, the mortgagee, sought possession of property from Elphick, the mortgagor, and obtained a writ of possession. Elphick's husband applied for a stay of the writ pending determination of his claim to an interest in the property. The dispute arose from a mediation settlement where Elphick agreed to consent to possession if payment was not made by a nominated date. At mediation, Elphick's husband had undertaken not to make any claim to any interest in the property. However, he subsequently sought to claim an interest, prompting the mortgagee to oppose the husband's application for a stay.

The primary legal issue was whether the husband's claim to an interest in the property, made after the mediation settlement, should permit a stay of the execution of the writ of possession. The court needed to consider the effect of the husband's undertaking at mediation and the implications of the settlement terms. The court also had to determine the balance between the husband's right to have his claim heard and the mortgagee's right to enforce the terms of the settlement.

The court found that the husband's claim was an attempt to undermine the settlement agreement. It held that the husband's undertaking at mediation was binding and that the husband had no valid claim to an interest in the property. The court emphasised the importance of upholding the terms of a settlement agreement, especially when the other party had relied on it to their detriment. Consequently, the application for a stay was dismissed. The court ordered that the writ of possession should proceed as per the terms of the mediation settlement.

Orders