Perpetual Corporate Trust Limited v Begum

[2024] NSWSC 743

Supreme Court

New South Wales

Medium Neutral Citation:

Perpetual Corporate Trust Limited v Begum [2024] NSWSC 743

Hearing dates:

18 June 2024

Date of orders:

18 June 2024

Decision date:

18 June 2024

Jurisdiction:

Common Law

Before:

Davies J

Decision:

(1) Pursuant to s 135 of the Civil Procedure Act 2005 (NSW) that the execution of the writ of possession comprised in certificate of title folio identifier 26/1011450, being the land situated at and known as XX Bella Vista Drive, Leeton, New South Wales, be stayed until 5pm Wednesday 19 June 2024.

(2) Defendant is to pay the costs of the present application.

Catchwords:

LAND LAW – possession of land – application to stay writ of execution – no point of principle

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Perpetual Corporate Trust Limited (Plaintiff)
Raj Begum (Defendant)

Representation:

Counsel:
T Wignell (Plaintiff)
In person and M Begum (by leave) (Defendant)

Solicitors:
TG Legal + Technology (Plaintiff)
In Person (Defendant)

File Number(s):

2022/257583

Publication restriction:

Nil

JUDGMENT EX TEMPORE

1. The plaintiff obtained default judgment against the defendant on 19 January 2023 for possession of land at XX Bella Vista Drive, Leeton (“the property”) and in the sum of $276,754.66. A writ of execution was issued, and a stay application was made to Chen J on 27 May 2024. It was put to Chen J on that occasion that contracts had been exchanged by the defendant to sell the property, with contracts exchanging on 22 May 2024. That contract is also before me. The contract provides that completion is to occur 28 days after the contract date.

2. Justice Chen, accordingly, granted a brief stay, to 5 April 2024, on the basis that an amount of arrears owing would be paid by the defendant to the plaintiff by 4 June. The balance was then to be cleared by the settlement of the sale of the property. Subsequently, the sheriff issued a further notice to vacate on 3 June 2024, saying that the writ would be executed at 1:30pm on 18 June 2024.

3. Settlement of the sale of the property, I am informed, was scheduled for yesterday but was delayed to today. It was supposed to take place this morning but has now been rescheduled for 4pm. There is some evidence to support the fact there will be a PEXA settlement today.

4. The amount outstanding to the plaintiff is in the order of $262,000 together with some legal costs. I am informed there is a second mortgagee who is owed about $103,000. There is also a caveator owed $50,000. The contract for sale is in the sum of $850,000. Accordingly, if settlement proceeds this afternoon both mortgagees and the caveator will be fully paid, with money left over for the defendant.

5. This application to stay the writ of execution has been brought at the very last minute. The defendant has been on notice for a considerable time that the sheriff would be attending at 1:30pm today. The reason for the lateness was said to be that the settlement of the contract was scheduled for yesterday, and it was only when that was postponed that the present application was necessary. Not all of the arrears were paid to the plaintiff by 4 April 2024 as had been promised. The delay in selling the property since judgment was obtained is also entirely unsatisfactory.

6. Nevertheless, it seems to me that the only sensible course in the circumstances of the settlement being scheduled for later today, is for there to be a stay granted for a short period of time to enable the settlement of the contract to take place.

7. Accordingly, I will order, pursuant to s 135 of the Civil Procedure Act 2005 (NSW), that the execution of the writ of possession comprised in certificate of title folio identifier 26/1011450, being the land situated at and known as XX Bella Vista Drive, Leeton, New South Wales, be stayed until 5pm Wednesday 19 June 2024.

8. The defendant is to pay the costs of the present application.

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Decision last updated: 18 June 2024