Perpetual Corporate Trust Limited v AI Group Development Pty Limited

The dispute before the court involved Perpetual Corporate Trust Limited, the mortgagee, and AI Group Development Pty Limited, the mortgagor. The mortgagee sought possession of the property following the mortgagor's default on the mortgage agreement. A default judgment was entered and a writ of possession was issued, but the mortgagor applied for a stay of execution of the writ, citing hardship and the commencement of property sale. The matter was heard in the Supreme Court of Victoria.

The central legal issue before the court was whether the execution of the writ of possession should be stayed to allow the mortgagor to proceed with the sale of the property. The court had to consider the balance of convenience and the likelihood of hardship to the mortgagor if the writ were executed immediately. It was necessary to determine whether the hardship claimed by the mortgagor was sufficient to warrant a stay and whether there was a realistic prospect that the property could be sold within the proposed timeframe.

In delivering its judgment, the court recognised the hardship that would be caused to the mortgagor if the writ of possession were executed immediately. The court considered that the mortgagor had already made significant progress in selling the property and that the sale was in the best interests of all parties involved. The court concluded that there was a reasonable likelihood that the property would be sold within the proposed timeframe of January 2024. Therefore, the court granted the application for a stay of execution of the writ of possession until that date.

The final orders of the court were that the writ of possession issued by the court on 14 November 2023 was stayed until 31 January 2024. The stay was to allow the mortgagor to proceed with the sale of the property. The court directed that all parties were to use their best endeavours to ensure that the sale was completed by the stay expiry date.