Permanent Trustee Company Ltd v Burkitt Australia Pty Ltd

[2006] NSWSC 1343

CITATION:	Permanent Trustee Company Ltd v Burkitt Australia Pty Ltd [2006] NSWSC 1343
HEARING DATE(S):	20/09/06
JURISDICTION:	Equity Division Duty List
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	09/20/2006
DECISION:	Stay of execution of writ of possession refused.
CATCHWORDS:	PROCEDURE – Stay of execution – Judgment for possession – where no risk of capital loss to plaintiff – where last minute offer of refinance – when plaintiff has shown sustained tolerance and patience in affording time and opportunity to refinance – stay refused.
PARTIES:	Permanent Trustee Company Ltd ACN 000 000 993 (P) Burkitt Australia Pty Ltd ACN 057 630 458 (D1) James Burkitt (D2) Tanya Grassi (D3)
FILE NUMBER(S):	SC 13158/04
COUNSEL:	Mrs Van Ravels (sol) (P/Resp) Mr A Fairbairn (sol) (D/App)
SOLICITORS:	Gadens Lawyers (P/Resp) Fairbairn Lawyers (D/App)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
POSSESSION LIST

BRERETON J

Wednesday 20 September 2006

13158/04 Permanent Trustee Company Limited v Burkitt Australia Pty Limited

JUDGMENT (Ex tempore)

1 HIS HONOUR: The sheriff is in the process of executing a writ for possession of a farm property at Glenquarry in the Southern Highlands, of which the first defendant is the registered proprietor.

2 The plaintiff obtained judgment for possession of the property on 5 January 2005, when a writ of possession was first issued. Notice to vacate was given on 7 February 2005, appointing a time for eviction of Thursday 10 March 2005. On 8 March 2005, the plaintiff agreed not to execute the writ, upon the defendant providing evidence of an unconditional approval of refinance by 24 March. Subsequently time to do so was extended until 10 June 2005. No refinance proceeded.

3 On 25 November 2005, the plaintiff required that there be evidence of an unconditional approval of refinance by 9 December. None was provided. On 9 December 2005, the solicitors for the defendant requested until 31 March 2006 to refinance. On 19 December 2005, the plaintiff notified the defendant's solicitors that the plaintiff would proceed to obtain an eviction date. On 22 February 2006, the plaintiff filed an application for a fresh writ of possession, and as a result notice to vacate was given for 5 April 2006. The evidence does not cover what happened between April and August 2006, but I infer that there have been further negotiations and extensions of time in the meantime.

4 On 21 August 2006, the sheriff gave the defendant notice to vacate by 6 September 2006. Again, I infer that there must have been further negotiations and extensions granted in the meantime. At some time prior to today, however, notice to vacate by 9.30 this morning 20 September 2006 was given.

5 On 18 September 2006, Provident Capital issued to the plaintiff an indicative proposal for a residential mortgage loan, involving a refinance of some $2 million or 55 per cent of the valuation of the property, whichever was the less. That was amended, on 19 September 2006, to a proposed facility of the lesser of $2.6 million or 60 per cent of valuation. The defendant asserts that the property is worth in excess of $5 million.

6 There have been further, last-minute, negotiations about the payment of arrears. By notice of motion, leave to file which is sought this morning, the defendant now seeks a stay of execution for 21 days, to enable a refinance to proceed.

7 I am acutely conscious of and sympathetic to the circumstance that this is a farming property, and the home of at least part of the family whose members own the shares in the first defendant, and that considerable disruption to the farm business may be occasioned by the execution of the writ. And I also bear in mind that there is unlikely to be capital loss to the plaintiff, as the value of the property, as evidenced by what has been proposed on the refinance, seems adequate to cover the amount of the debt to the plaintiff mortgagee. I also bear in mind that there is what seems to be a firm offer of refinance within 21 days, and an offer made yesterday or today to bring up to date the arrears.

8 However, the offer to bring up to date the arrears would have been much more impressive if the arrears had in fact been brought up to date, rather than an offer being made to do so today. While, as I have said, I have a great deal of sympathy for the defendant's position, it also has to be borne in mind that, as a matter of law, the plaintiff is entitled to possession of the property, and has been entitled to possession under a judgment which has stood now for nearly two years; that the defendant has been afforded great tolerance and time up to now before the plaintiff has insisted on taking possession; and that while granting a stay would afford compassion to the defendants, it would deny legal rights to the plaintiff.

9 In those circumstances I am afraid that, albeit with considerable reluctance, and despite everything that Mr Fairbairn has urged in favour of his client, I do not think that I could possibly, as a proper exercise of discretion, grant a stay today.

10 I refuse leave to file the notice of motion. I do so on the basis that I have considered the motion on the merits and would refuse the relief sought in it, and for that reason there is no utility in granting leave to file it. I order that the exhibits be returned.

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