Private Mortgage Holdings Pty Ltd v Cleary
[2025] NSWSC 1012
•04 September 2025
Supreme Court
New South Wales
Medium Neutral Citation: Private Mortgage Holdings Pty Ltd v Cleary [2025] NSWSC 1012 Hearing dates: 04 September 2025 Date of orders: 04 September 2025 Decision date: 04 September 2025 Jurisdiction: Common Law Before: Garling J Decision: See [11]
Catchwords: PERSONAL PROPERTY – Possession – Right to possession – Where a writ of possession has been previously ordered and executed – Where occupants allowed possession until the completion of the contract for sale – Occupants evicted prematurely without adequate notice – Evidence provided demonstrating agent’s intention to evict upon date of completion of the contract for sale – Application that possession is restored to the defendant – Application successful
Legislation Cited: Not Applicable
Cases Cited: Not Applicable
Texts Cited: Not Applicable
Category: Procedural rulings Parties: Private Mortgage Holdings Pty Ltd (P)
Stephen Michael Cleary (D)
Samantha Jane Vitomir (D)Representation: Counsel:
Solicitors:
No appearance (P)
Self-represented (D)
Bransgroves Lawyers (P)
File Number(s): 2025/93641 Publication restriction: Not Applicable
EX TEMPORE JUDGMENT
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Proceedings were commenced in this Court by Statement of Claim dated 7 March 2025. The plaintiff, Private Mortgage Holdings Pty Ltd, sought possession of identified land at Lane Cove from the defendants, Mr Stephen Cleary and Ms Samantha Vitomir. Judgment for possession was entered, and on 25 July 2025, a writ of possession issued.
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Before the Court in the Duty List today is a Notice of Motion filed by Mr Cleary, on behalf of himself and his wife, seeking an order that they be allowed back into possession of the property until settlement of a Contract for Sale which is fixed to occur on 26 September 2025. In support of that Notice of Motion, Mr Cleary relies upon an affidavit filed today.
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When the matter was referred to me in the Duty Judge list by the Duty Registrar, I directed that Mr Cleary be informed that he should inform the lawyers for the plaintiff, Bransgroves Lawyers, that the Notice of Motion had been filed, and that it was to be heard in the Duty List, by me, today, and that they ought attend. I am told that the lawyers for the plaintiff have been notified by email, both by the Registrar of the Court and by Mr Cleary. The matter was listed today at 2.15pm. The matter was called outside the Court shortly after that time, and has been continuing until now, which is 3.00pm. There has been no appearance by or on behalf of the plaintiff, or by or on behalf of Bransgroves Lawyers.
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Either through the affidavit or from the Bar table, I have been informed of the following circumstances: first, that the property, the subject of the writ of possession, has in fact been sold, and the contract for sale is to be completed on Friday, 26 September 2025.
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Secondly, Mr Cleary and Ms Vitomir presently occupy and have occupied for some significant period of time before the proceedings were commenced, the property together with their two sons, one aged 20 years and one aged 16 years.
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Thirdly, they have been permitted to remain in residence of the property, even though it was being offered for sale, because the plaintiff was advised that it should hold off from eviction whilst the property was being offered for sale, subject, of course, as one might expect, to the property being kept in a manner such that the chances of selling it at the highest possible price are improved. That is confirmed in a copy of a text message from the plaintiff's lawyers to Mr Cleary, which has been put before me.
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As well, I have been informed from a copy of an email sent from the real estate agent to Bransgroves Lawyers, that their advice is:
"To keep Stephen in the home. The presentation has consistently been spot on, with the home nicely furnished, the gardens maintained well and the property well prepared for every open. This will be a strong advantage throughout the campaign.
Stephen has also been very cooperative with showings, with access never an issue, and the home has always presented beautifully.
In my view, leaving Stephen in place will best support the sale. Should my opinion change at any point, I'll be sure to let you know."
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This morning, at 9am or thereabouts, officers of the Sheriff, together with an agent of the plaintiff and a locksmith, attended at the property and executed the Writ of Possession. As a consequence, the defendants have been evicted from the property and, despite requests, have not been permitted to return to it to remove clothing or other personal belongings. Mr Cleary deposes, and has informed me, that at no time has he, his wife, or either of their two sons received any notification from the plaintiff or any agent of the plaintiff, or from the Office of the Sheriff, that an eviction was scheduled for this morning. As a consequence, Mr Cleary informs me, and I accept, that he did not approach the Court to obtain a discretionary extension of time until today. I am satisfied that the Contract of Sale is to be completed on 26 September 2025, namely in about three weeks' time.
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Mr Cleary informs me that, because he was not aware he was being evicted today and that, in light of the previous arrangements which had been continuing without any complaint on the part of the plaintiff, the real estate agent, or the plaintiff's lawyers, he has made no arrangements to pack up his belongings, to have them removed from the premises, and stored in an accessible location. Nor, I infer, has he made any arrangements for any alternative accommodation for himself, his wife, or their children.
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Mr Cleary informs me that he is of the view that the property has been sold at a significantly reduced price from its real value. I am not asked to determine the correctness of that view, but Mr Cleary accepts that if he is to challenge the sale on that basis, then he will have to bring proceedings separately from the current proceedings. In other words, he does not suggest that any relief relating to the sale price should form part of the Court's consideration today.
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I am proceeding to consider simply the question, having regard to the material before me, whether there having been no notice provided to the defendants and their sons of the fact of execution of the Writ of Possession this morning, they should be entitled to an order that possession is restored to them. I am satisfied that they should obtain such an order. However, clearly, that order cannot be permitted to disturb the completion of the Contract for Sale because of the real financial risks to the plaintiff if such a sale is disturbed.
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I order as follows:
Order that the defendants, Stephen Michael Cleary and Samantha Jane Vitomir, be restored forthwith to possession of the whole of the land contained in folio identifier 19/9952, being the property situated at and known as 55 Austin Street, Lane Cove, NSW 2066 ("the land").
Order that the plaintiff be restrained by itself, its servants, or agents, from disturbing the quiet possession of the land by the defendants, during the currency of Order 1.
Order 1 is to continue in existence up to, but no later than, 4pm, 24 September 2025.
Order that notice of these orders is to be served and is thereby effective if a copy of these orders is:
sent by email to Matthew Bransgroves and Kate Cooper of Bransgroves Lawyers at [email protected];
by email to Simon Harrison of Belle Property, Lane Cove at belleproperty.com/lane-cove or by text to 9433 100 150;
by text message to the plaintiff's agent, known as Ryan, on 0493 *** ***.
Direct the plaintiff, by its servants or agents, including Ryan, to take all such steps as may be necessary to forthwith give effect to Order 1, and the restoration of Stephen Michael Cleary and Samantha Jane Vitomir to possession of the land.
Reserve to the parties liberty to apply to the Court on three days' notice.
Stand the proceedings over for directions before the Common Law Registrar on 26 September 2025.
Reserve all questions of costs.
Direct that the orders be entered forthwith.
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Decision last updated: 10 September 2025
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