Qasim v PF 473 Pty Ltd - [2024] NSWCA 248

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Qasim v PF 473 Pty Ltd [2024] NSWCA 248
Hearing dates: 14 October 2024
Date of orders: 15 October 2024
Decision date: 15 October 2024
Before: Gleeson JA
Decision:
(1) Discharge order (1) made by Kirk JA on 9 October 2024.
(2) Dismiss the notice of motion filed 16 August 2024.
(3) Appellant to pay the first respondent’s costs of the motion.

Catchwords:
CIVIL PROCEDURE — Stay of execution pending appeal — Judgment for possession — Where writs of possession issued in respect of two properties — Where interim stay granted for short period — Where one property scheduled for auction by mortgagee — Whether notice of appeal raises “serious issues” or “arguable grounds” — Balance of convenience or hardship — Whether postponing auction would be unfairly prejudicial to mortgagee — Whether enforcement of second writ of possession should be stayed

Legislation Cited:
Conveyancing Act 1919 (NSW), s 23C

Cases Cited:
Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
Baloglow v Konstanididis & Ors [2001] NSWCA 451
Carver v State of New South Wales [2023] NSWCA 223
Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383
Khoury v Khouri (2006) 66 NSWLR 241; [2006] NSWCA 184
Qasim v PF 473 Pty Ltd [2024] NSWCA 242
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52

Category: Procedural rulings
Parties: Shaheen Qasim (Appellant)
PF 473 Pty Ltd (First Respondent)
Hymans Valuation (Second Respondent)
Nicola Craven (Third Respondent)
Representation:
Counsel:
C K Stewart (Appellant)
P T Newton SC (Respondent)
Solicitors:
Somerville Legal (Appellant)
ERA Legal (Respondents)

File Number(s): 2024/280851
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law Division

Citation:

[2024] NSWSC 874

Date of Decision:

19 July 2024

Before:

Faulkner J

File Number(s):

2023/245456

JUDGMENT

GLEESON JA: The appellant, Ms Shaheen Qasim, seeks a stay of execution of a judgment for possession of land pending the determination of her appeal from a judgment given by Faulkner J in the Common Law Division on 19 July 2024: PF 473 Pty Ltd v Qasim [2024] NSWSC 874. The judgment for possession relates to two strata title Units at William Street, Randwick owned by Ms Qasim. The first respondent (the Lender) entered into possession of Unit 3 on about 15 September 2024 and that property is listed for auction on 19 October 2024. Ms Qasim lives in Unit 4; a writ of possession has been issued in respect of this Unit and it is anticipated the writ will be enforced by the Sheriff on 4 November 2024.
On 9 October 2024, Kirk JA ordered that, upon Ms Qasim giving the usual undertaking as to damages, the Lender be restrained from taking any further steps to take possession of the Units until 4 pm on 15 October 2024 (order (1)). That order was made in circumstances where his Honour explicitly…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Qasim v PF 473 Pty Ltd

Details

AGLC: Qasim v PF 473 Pty Ltd [2024] NSWCA 248
Case: [2024] NSWCA 248
Decision Date: 15 October 2024

CaseChat Overview and Summary

In this matter before Gleeson JA of the Court of Appeal of the Supreme Court of New South Wales, the appellant, Qasim, sought a stay of execution of writs of possession issued in respect of two properties. The first respondent, PF 473 Pty Ltd, had obtained these judgments. The dispute centred on whether the appellant had raised sufficiently serious issues or arguable grounds to warrant a stay, particularly in light of one property being scheduled for auction by a mortgagee and the potential prejudice to that mortgagee.

The primary legal issues before the Court were whether the appellant had demonstrated that the notice of appeal raised "serious issues" or "arguable grounds" for the purpose of granting a stay of execution. Furthermore, the Court was required to consider the balance of convenience or hardship, specifically whether postponing the mortgagee's auction would cause unfair prejudice to the mortgagee, and whether the enforcement of the second writ of possession should be stayed pending the appeal.

Gleeson JA considered the appellant's arguments and the material before the Court. The Court found that the appellant had not established the necessary threshold of serious issues or arguable grounds to justify the grant of a stay. The potential prejudice to the mortgagee from postponing the auction was also a significant factor. Consequently, the Court determined that the interim stay previously granted should be discharged.

The Court ordered the discharge of the order made by Kirk JA on 9 October 2024, and dismissed the notice of motion filed on 16 August 2024. The appellant was ordered to pay the first respondent’s costs of the motion.

Orders

Orders of the court

(1) Discharge order (1) made by Kirk JA on 9 October 2024.

(2) Dismiss the notice of motion filed 16 August 2024.

(3) Appellant to pay the first respondent’s costs of the motion.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Qasim v PF 473 Pty Ltd [2024] NSWCA 248
Hearing dates:	14 October 2024
Date of orders:	15 October 2024
Decision date:	15 October 2024
Before:	Gleeson JA
Decision:	(1) Discharge order (1) made by Kirk JA on 9 October 2024. (2) Dismiss the notice of motion filed 16 August 2024. (3) Appellant to pay the first respondent’s costs of the motion.
Catchwords:	CIVIL PROCEDURE — Stay of execution pending appeal — Judgment for possession — Where writs of possession issued in respect of two properties — Where interim stay granted for short period — Where one property scheduled for auction by mortgagee — Whether notice of appeal raises “serious issues” or “arguable grounds” — Balance of convenience or hardship — Whether postponing auction would be unfairly prejudicial to mortgagee — Whether enforcement of second writ of possession should be stayed
Legislation Cited:	Conveyancing Act 1919 (NSW), s 23C
Cases Cited:	Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 Baloglow v Konstanididis & Ors [2001] NSWCA 451 Carver v State of New South Wales [2023] NSWCA 223 Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383 Khoury v Khouri (2006) 66 NSWLR 241; [2006] NSWCA 184 Qasim v PF 473 Pty Ltd [2024] NSWCA 242 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52
Category:	Procedural rulings
Parties:	Shaheen Qasim (Appellant) PF 473 Pty Ltd (First Respondent) Hymans Valuation (Second Respondent) Nicola Craven (Third Respondent)
Representation:	Counsel: C K Stewart (Appellant) P T Newton SC (Respondent) Solicitors: Somerville Legal (Appellant) ERA Legal (Respondents)
File Number(s):	2024/280851
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2024] NSWSC 874 Date of Decision: 19 July 2024 Before: Faulkner J File Number(s): 2023/245456