Perpetual Corporate Trust Limited v Colevski Pty Limited

Perpetual Corporate Trust Limited brought an action against Colevski Pty Limited and others for possession of three properties. The dispute was heard in the Supreme Court of New South Wales, where the plaintiffs sought a writ of possession over the properties. The third defendant, Colevski Pty Limited, applied for a stay of execution of the writ, despite eviction from two of the properties being scheduled for early on 20 May 2024. The court had to determine whether the application for a stay of execution was justified, given the circumstances and the timing of the application.

The court considered the legal issues surrounding the adequacy of the affidavit submitted by the defendant, which contained demonstrably false allegations. Additionally, the defendants had not filed a defence, and no affidavit from their solicitor had been provided outlining or annexing any grounds of defence. The court had to assess whether the application was made in good faith and whether there was any valid explanation for the delay in lodging the application. The court noted that the potential conflict of interest involving the solicitor was not adequately addressed in the affidavit.

In its judgment, the court found that the application was made too late and that the affidavit was inadequate. The court refused the application for a stay of execution, noting that the eviction was imminent and that there was no valid explanation for the lateness of the application. The court emphasised that the defendants had not filed a defence and had not provided any affidavit from their solicitor outlining or annexing any grounds of defence. The court concluded that the application was an attempt to frustrate the enforcement of the judgment and that it would not be in the interests of justice to grant the stay. The eviction proceeded as scheduled.