Orde Mortgage Custodian Pty Limited v Belcastro

[2025] NSWSC 4

Supreme Court

New South Wales

Medium Neutral Citation:	Orde Mortgage Custodian Pty Limited v Belcastro [2025] NSWSC 4
Hearing dates:	9 January 2025
Date of orders:	9 January 2025
Decision date:	09 January 2025
Jurisdiction:	Common Law
Before:	Dhanji J
Decision:	Orders sought declined.
Catchwords:	LAND LAW – possession of land – urgent application to stay execution of writ of possession – previous application for temporary stay had been granted and stay then expired – no adequate explanation for lack of action by applicant
Cases Cited:	GE Personal Finance Pty Limited v Smith [2006] NSWSC 889
Category:	Procedural rulings
Parties:	Orde Mortgage Custodian Pty Limited (Plaintiff) Dion Belcastro (Defendant)
Representation:	Solicitors: TG Legal and Technology Lawyers (Plaintiff) Self-represented (Defendant)
File Number(s):	2024/140555
Publication restriction:	Nil

extempore JUDGMENT (revised)

1. HIS HONOUR: Dion Belcastro (to whom I will refer as “the applicant”) made contact with my Associate after hours yesterday evening.  That contact was made on the basis that I am currently the Duty Judge.  In the course of a telephone conversation with my Associate, Mr Belcastro explained that he was due to be evicted from his house today and was, as a result, seeking a stay of execution of the writ of possession.

2. The applicant in that telephone communication indicated that he required a stay until this Friday, 10 January 2025, in order to undertake a scheduled medical procedure, after which he would be in a position to argue the matter more fully.  The effect of the stay until Friday 10 January would have been to put back the scheduled eviction.  In the ordinary course of events, it is unclear as to when a further eviction would be scheduled but it is likely that it would have to be some time after the temporary stay sought.

3. In the circumstances, arrangements were made to list the matter on an urgent basis before me at 8am this morning.  The solicitor for the plaintiff in the proceeding was contacted.  The Court is grateful for the attendance of Ms Nagam at what was very short notice.

4. The matter has something of a history in this Court.  The plaintiff is the mortgagee in respect of a property at which the applicant presently resides, he being the mortgagor.  It appears that the applicant has been in default on the mortgage, a matter which I do not understand to be disputed.  The plaintiff filed a statement of claim on 16 April 2024 seeking possession of the property and judgment with respect to the debt, together with interest and fees in accordance with the loan.

5. On 25 June 2024, default judgment was obtained by the plaintiff.

6. On 26 August 2024, the plaintiff was granted a writ of possession.

7. Subsequent to this, the applicant on 31 October 2024 filed a notice of motion seeking a stay of execution of the writ of possession.  That matter came before the Registrar and a stay was granted, according to the Court record, until 5pm on 11 November 2024.  That record may be in error.  The matter was next before the Court on 18 November 2024, and it seems likely that on 11 November the stay would have been ordered to operate until that next date, that is 18 November 2024.  Whatever be the case, on 18 November 2024, the record indicates that no further evidence was filed.  There was no appearance of the applicant and the applicant’s motion seeking a stay was dismissed.

8. On 13 December 2024, a further application for a stay was made by notice of motion with a supporting affidavit apparently prepared by the applicant.  That affidavit set out a number of circumstances and annexed various documents.  A temporary stay was granted by Coleman J until 19 December 2024 at 5pm with the matter to be listed for hearing before his Honour on 19 December 2024.  On that date, it seems there was no attendance by the applicant.  His Honour indicated that no further order was made with the result that the stay expired at 5pm on 19 December 2024.

9. It seems that nothing has been done by the applicant subsequent to that time until, as I have said, yesterday evening.  The applicant has today indicated that he did not attend on 19 December 2024 as a result of a break in to the garage at the property.

10. In the course of the applicant’s contact with my Associate last night, given the urgent nature of the application, he was told that an urgent listing would be granted at which he could seek leave to file a further notice of motion.  The applicant has not produced any further motion or affidavit evidence.  In the circumstances, the proceeding continued with what might be described as a significant degree of informality.

11. The applicant attempted from the bar table to explain his circumstances and his need for the stay.  In particular, the applicant indicated that he has now entered into a contract for sale with an agent.  He wishes to remain at the property to see through that sale.  I understand that whilst remaining there, he would also be in a position to attend to some minor repairs for the purpose of facilitating the sale.  The contract for sale is by way of private treaty; that is, there is no auction with the result that it is unclear as to if and when the property might be sold.

12. The other concern raised by the applicant is the absence of anywhere for him to live once he is evicted, together with the contents of the home needing to be moved to some other location.  It is difficult not to be sympathetic to a person who faces forced removal from their home with their belongings.  I also accept that the applicant has had some medical difficulties over the last several months.

13. The difficulty for the applicant is that this is a process which has been going on for some time.  Against that, the applicant, from the bar table, has informed me that he has, in essence, nowhere to live, in particular that his parents, with whom I gather he could otherwise stay, are overseas.  He indicated that for reasons peculiar to his father, his father was not willing to have him stay at the father’s house in the absence of his parents.  It is difficult to make any informed assessment of these claims.

14. I am, nonetheless, prepared to proceed on the basis that the applicant will be in some difficulty.  I understand the applicant also has two young children.  Information provided to me, however, is that they are able to reside with the applicant’s ex‑wife and any desperation with respect to their situation appears not to be acute. 

15. As I have said, the difficulty is this is a process which has been going on for some time. The concern in that regard is that further delays and proceedings have the potential to simply add to the legal expenses and eat into any equity that remains in the property.  The chronology I have provided indicates that the applicant has been in default since April of last year.  There have been various steps in the proceedings, yet it was only yesterday that a contract for sale was entered into.  The plaintiff has some doubts as to the energy with which the applicant might pursue the process of sale if he is allowed to remain at the property.  Those concerns are, given the chronology, understandable.

16. The defendant seeking a stay ought to be in a position to explain his inaction prior to making the application:  see GE Personal Finance Pty Limited v Smith [2006] NSWSC 889 (Smith) at [12] (Johnson J). Further, the defendant can have no expectation of an extended stay on hardship grounds alone if it is clear that the plaintiff is otherwise entitled to obtain possession of the property: Smith at [22].

17. Given the chronology to which I have referred, there is to my mind simply no adequate explanation for the lack of action by the applicant.  The prospect of the further extension of what has already been a protracted process is undesirable and unwarranted.  Difficult as the situation no doubt is for the applicant, having given him the opportunity to make his case from the bar table, I am not satisfied that any further intervention is warranted.

18. I decline to make any orders as sought by the applicant.

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Decision last updated: 15 January 2025