Prime Capital Securities Pty Ltd v Seven 8 Six Pty Ltd

[2017] NSWSC 1162

Supreme Court

New South Wales

Medium Neutral Citation:	Prime Capital Securities Pty Ltd v Seven 8 Six Pty Ltd [2017] NSWSC 1162
Hearing dates:	31 August 2017
Date of orders:	31 August 2017
Decision date:	31 August 2017
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	The defendant’s application for a further stay of the writ of possession is refused.
Catchwords:	LAND LAW – Enforcement of judgment for possession – Writ of possession – Application for stay of writ of possession – Where four previous stays granted – Where undertaking given not to apply for further stay – Stay refused
Category:	Procedural and other rulings
Parties:	Prime Capital Securities Pty Ltd (Plaintiff) Seven 8 Six Pty Ltd (Defendant)
Representation:	Counsel: M. Young SC (Plaintiff) Defendant in person   Solicitors:
File Number(s):	2017/101198
Publication restriction:	Nil

EX TEMPORE Judgment (Revised)

1. This is a fifth application for a stay of a writ of possession which was issued on 2 May 2017 to enforce judgment for possession which was granted on 20 April 2017. The original writ was scheduled for execution on 19 June and a stay was obtained on 15 June 2017, until 22 June 2017.

2. On 22 June, that is to say, the day on which the stay expired, Mr Hussain, who appears before me today without representation, applied to the Registrar for a further stay. That stay was granted and the plaintiff was granted leave to schedule an eviction after 13 July 2017.

3. A further stay was granted by McCallum J on 19 July 2017 in terms that there was not to be an eviction before 9 August 2017.

4. A further stay was obtained by consent on 15 August 2017 until today. It is now 9.58am. The time for eviction was appointed at 10am and Mr Hussain has come into Court this morning seeking a further stay until Tuesday.

5. I have given him leave to make the application notwithstanding an undertaking which he made on the last occasion not to make any further application for a stay of the eviction. That undertaking was in unqualified terms. I allowed him to make the application due to a change in circumstances. First, his father had an injury last week breaking his clavicle, and secondly, he sought to argue that the amount of the payout figure has increased, meaning that the finance he has arranged is not quite sufficient to cover the present debt. Further interest will roll over tomorrow on 1 September, I am told, meaning a further interest payment will be due at any settlement on Tuesday if I grant the stay.

6. The history of this matter, I must say, is most unsatisfactory. Notwithstanding a number of opportunities to refinance in an amount sufficient to discharge the debt, the plaintiff has not been able to achieve that. He assures me, as he has assured the Court on four previous occasions, that he will be in a position to do that by Tuesday. I must say, on the evidence, despite his best intentions, I am not convinced that this is correct. By that I mean I am not persuaded on the balance of probabilities that there is finance in place to cover the full amount of the debt due to the plaintiff.

7. There is no issue in this case, as I understand it, that the value of the security is sufficient to cover the debt. At the same time, the plaintiff has judgment and is entitled to enforce it.

8. I accept that on the evidence attached to the Mr Hussain’s affidavit, Mr Hussain Senior, who is 87 years of age, did suffer a fracture of his clavicle due to a fall at home on 23 August 2017. I note, however, from annexure D to the affidavit, that he was treated in the emergency department and discharged on the same day. There is a fracture of the left clavicle and he was discharged from hospital in a shoulder immobiliser. There is no suggestion, with respect, that despite his age he is not able to ambulate and not able to mobilise.

9. In all the circumstances, despite having every sympathy for the position of Mr Hussain and his family, I am not persuaded that it is appropriate for the Court to grant a further stay. Doubtless, it will be impossible for the plaintiff to exercise any power of sale before Tuesday and if Mr Hussain is able, as he feels confident he will be, to put in place the additional finance and arrange a settlement on Tuesday, the family will be in a position where they can move back into their home.

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Decision last updated: 06 September 2017