Romiz Constructions v Byrnes

[2010] NSWSC 26

CITATION:	Romiz Constructions v Byrnes [2010] NSWSC 26
HEARING DATE(S):	18 January 2010
JURISDICTION:	Equity Division
JUDGMENT OF:	McDougall J at 1
EX TEMPORE JUDGMENT DATE:	18 January 2010
DECISION:	Decline to stay the writ of possession.
CATCHWORDS:	MORTGAGES - defendant mortgagor's application for stay of execution of writ of possession - date for payment of balance owing under mortgage lapsed - repeated failure from mortgagor to pay on time - unsatisfactory nature of evidence as to whether there were sufficient funds to pay out amount owing - application denied.
PARTIES:	Romiz Constructions (Plaintiff) Catherine Gina Lisa Byrnes (Defendant)
FILE NUMBER(S):	SC 2009/287599
COUNSEL:	Cooper (Solicitor) (Plaintiff) P Beazley (Solicitor) (First Defendant)
SOLICITORS:	Simmons & McCartney Lawyers (Plaintiff) Beazley Singleton Lawyers (First Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

McDOUGALL J

18 January 2010

1586/09 ROMIZ CONSTRUCTIONS v CATHERINE GINA LISA BYRNES

JUDGMENT

1 HIS HONOUR: The defendant has mortgaged her residence to the plaintiffs. The mortgage is unregistered. There is a prior mortgagee said to be owed of the order of $5 million. The property is said to be worth of the order of $7 million. There is a dispute as to the amount owed by the defendant to the plaintiffs.

2 On 3 April 2009, the plaintiffs recovered default judgment for possession of the property and orders for sale (those orders being necessary because the mortgage was unregistered). The defendant filed a notice of motion to set aside that default judgment on 4 May 2009. Ultimately, on 11 November 2009, the notice of motion was dismissed by consent.

3 The matter has been before the Court on a number of occasions, and has been adjourned to attempt to allow the parties to resolve their dispute. One of the matters in dispute, which was apparently to have been the subject of a defence had the default judgment been set aside, relates to the interest charged under the mortgage: 15 percent per month. On 11 September 2009, the parties reached agreement on a number of things, including that the interest rate would be reduced to something less usurious if a payment was made on account and the balance owing under the mortgage were paid out by a stipulated date. The amount required to be paid on account was paid but the balance was not paid out. That agreement was in effect extended on 11 November 2009. The plaintiff consented on the basis that the mortgage would be discharged by 15 December 2009. That did not happen.

4 There were negotiations between the parties for the assignment of the mortgage (upon payment of the amount secured, whatever that might be) to a third party. No formal documentation was agreed, let alone executed.

5 The defendant’s case is that there was a binding agreement reached to compromise the amount due. She now seeks in effect a stay of the execution of a writ of possession (which has issued pursuant to the default judgment) to enable her to perform, although out of time, her obligations as to payment. The plaintiff says, simply, that the last extended time for compliance has passed and it should be at liberty to exercise its rights.

6 The defendant’s affidavit in support of the application points to a number of what she says are sources of funds from which the amount owing can be paid. Those sources of funds include the proceeds of sale of motor vehicles said to be owned by a motor vehicle trust, cash at bank held by another trust entity, a loan from yet another entity and a tax refund said to be due by the end of this month. In addition, there is evidence of the vaguest and most unsatisfactory kind of some agreement by a German company to buy an interest in an otherwise unidentified company for a substantial amount of money.

7 The defendant's affidavit makes it impossible to evaluate the reality of payment. There are no primary documents or other records put before the Court which would enable any assessment to be made of the terms of the various agreements or arrangements relied upon, or of the certainty of payment under those agreements or arrangements of sufficient funds to pay out whatever is the amount owing to the plaintiffs.

8 The defendant says that the plaintiffs in effect have gone back on the agreement made, having first been careful to take the payment of $50,000 that was required to be paid and that was paid. The plaintiffs say that the agreement was made on the condition as to payment by a fixed time (extended from time to time) to which I have referred and that there is now no impediment to the exercise of their rights.

9 Although the defendant's affidavit canvasses a number of matters of dubious relevance, one matter that it does not canvass is why she has been unable, to date, to pay the amount owing to the plaintiffs. It does not, for example, indicate why it is that the steps now said to be in train for the garnering of funds to pay out the plaintiffs were not taken some months ago. I have the overwhelming impression that the defendant is seeking simply to draw out these proceedings, to her advantage and the disadvantage of the plaintiffs, by promises of payment that she cannot or will not make. However, the defendant was not cross-examined on her affidavit; those matters were not put to her; she has not had an opportunity of putting her side of the case as to those matters; and I do not draw any inference to the effect of the matters to which I have referred. I do however note that the defendant could have enlightened the Court on relevant matters but apparently chose not to do so.

10 There is said to be some dispute as to the precise amount owing. That can be resolved in the usual way: by the taking of accounts if the parties cannot otherwise agree.

11 It was submitted that the plaintiffs would suffer no prejudice, because they were amply secured. If the figures to which I have referred are to be accepted at face value, then that may be so. If, however, the reality is that interest is accruing at the rate of 15 percent per month and not at the rate of 10 percent per annum then even a short delay will increase substantially the amount of the defendant's indebtedness.

12 The defendant points to the fact that the property in question is the residence of herself and her family, including two girls aged nine and ten and a son aged eighteen. I accept that it will cause hardship to the defendant and her family if the writ of possession is executed. That is, perhaps, something that the defendant should have taken into closer consideration when making the various agreements for payment that she has made and broken.

13 In all the circumstances, and balancing the various considerations as best I can having regard to the unsatisfactory nature of the evidence, I have come to the conclusion that the defendant's application fails. Accordingly, I decline to stay the writ of possession. If there is any utility in standing the balance of the notice of motion over for further hearing, I will hear the parties on that; but I will not make order 2 as sought in the notice of motion filed in Court today.

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