Secure Funding Pty Ltd (formerly known as Liberty Funding Pty Ltd) v Egan

[2015] NSWSC 669

Supreme Court

New South Wales

Medium Neutral Citation:	Secure Funding Pty Ltd (formerly known as Liberty Funding Pty Ltd) v Egan [2015] NSWSC 669
Hearing dates:	1 June 2015
Date of orders:	01 June 2015
Decision date:	01 June 2015
Jurisdiction:	Common Law
Before:	Davies J
Decision:	1. Second Defendant’s application for a stay on execution of writ of possession refused. 2. Second Defendant is to pay the Plaintiff’s costs of the Notice of Motion filed 26 May 2015.
Catchwords:	REAL PROPERTY – possession of land – application to stay writ of execution – Notice of Intention to Appeal filed – no grounds of appeal available – bulk of loan used to pay out prior mortgage – no offer or ability to pay or secure amount paid out to prior mortgagee – amount owing to judgment creditor exceeds value of property – stay refused
Legislation Cited:	Contracts Review Act 1980 (NSW)
Cases Cited:	Collier v Morlend Finance Corp (1989) NSW ConvR 55-473 Secure Funding Pty Ltd (formerly known as Liberty Funding Pty Ltd) v Phillip Egan [2015] NSWSC 340
Category:	Procedural and other rulings
Parties:	Secure Funding Pty Ltd (formerly known as Liberty Funding Pty Ltd) (Plaintiff) Christene Egan (Second Defendant)
Representation:	Counsel: P Dowdy (Plaintiff) In person (Second Defendant) Solicitors: Norton Rose Fulbright Australia (Plaintiff) Self represented (Second Defendant)
File Number(s):	2013/71366

Judgment

1. The Second Defendant applies by Notice of Motion filed 26 May 2015 for a stay on execution of a judgment. I am informed that the execution is scheduled for 4 June 2015. The judgment was given by Rein J on 27 March 2015: see Secure Funding Pty Ltd (formerly known as Liberty Funding Pty Ltd) v Phillip Egan [2015] NSWSC 340. The proceedings arose out of a claim for possession and a claim for debt from the Plaintiff to the present Second Defendant and her former husband, the First Defendant, who borrowed the money in 2004 and gave a mortgage to the Plaintiff to secure that loan. The loan sum was $255,000 and of that amount, $191,000 was used to refinance an earlier mortgage to ING Bank Limited.

2. The Second Defendant, in her defence, conceded that she obtained a benefit for the amount of the ING loan. She challenged the claim by the Bank on the basis of the Contracts Review Act 1980 (NSW). In a thorough judgment by Rein J, his Honour rejected each of the particular bases on which the application under the Contracts Review Act was made. The evidence demonstrated that the Second Defendant and her former husband had not only entered into a mortgage previously with ING, but with five other mortgagees before that time in respect of the property.

3. After the judgment of Rein J the Second Defendant seems to have commenced to act for herself. She had been legally represented throughout the trial. She says in her affidavit in support of the Motion that she filed a Notice of Intention to Appeal on 22 April 2015. This Notice of Intention to Appeal, contrary to the Rules, was not served on the solicitors for the Plaintiff. At the present time, no Notice of Appeal has been filed and that appears to be because the Second Defendant is endeavouring to obtain legal assistance in some form or another so she can pursue an appeal.

4. I endeavoured to ascertain what grounds of appeal she would rely on. She informed me that the lawyers who acted for her during the trial before Rein J did not lead all of the appropriate evidence that could have been led to support her claim that the contract should be varied or set aside under the Contracts Review Act. It is difficult in the absence of any further material to make any assessment of the likelihood of any success in the appeal. It is sufficient to say that the judgment of Rein J is a comprehensive one that appears to consider most matters, as I have said, that are enumerated in s 9 of the Contracts Review Act1980 (NSW) for consideration in such a case.

5. His Honour noted, as would be expected, that one difficulty the Second Defendant had was the fact that at least $191,000 of the loan had been used to pay out a prior mortgage. On the principle of Collier v Morlend Finance Corp (1989) NSW ConvR 55-473 the Second Defendant would have to make an offer to pay such an amount to justify an order being made under the Contracts Review Act. Nothing in the judgment suggests that such an offer was made.

6. In the application before me this morning, I raised the same point. The Second Defendant's son-in-law, who assisted her this morning, provided emails from St George Bank in relation to a loan which the Second Defendant had applied for. The emails, which tend to show a conditional approval, do not disclose the amount of the loan but he informed me that it was for $191,000. However, the emails are dated in January 2015.

7. I was informed by Ms Egan's son-in-law that the security for the borrowing from St George was to be the property in respect of which the order for possession has been made. Since the amount being borrowed was considerably less than the debt outstanding, the Plaintiff was, not unnaturally, not prepared to be displaced as first mortgagee for the payment of the smaller sum. The Second Defendant has no other means of offering that amount or any other sum to justify any stay on the execution of the judgment.

8. There is evidence from the solicitor for the Plaintiff that the most recent valuation of the property at St Andrews is approximately $335,000. The judgment that Rein J entered was for some $366,000 and the present amount outstanding, including fees and default interest incurred since that time, exceeds $390,000.

9. Whatever other success the Second Defendant might have in any appeal, any prospect of not having to repay at least $191,000 is remote. When there is no real information about the basis of any appeal and its likelihood of success and no offer to pay or secure $191,000, let alone the amount outstanding to the Plaintiff, the application for a stay of execution of the writ of possession must be refused.

10. The Second Defendant is to pay the Plaintiff's costs of the Motion.

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Decision last updated: 01 June 2015