Secure Funding Pty Ltd v Colin West

[2013] NSWSC 746

Supreme Court

New South Wales

Medium Neutral Citation:	Secure Funding Pty Ltd v Colin West [2013] NSWSC 746
Hearing dates:	7 June 2013
Decision date:	07 June 2013
Jurisdiction:	Common Law
Before:	Slattery J
Decision:	Execution of the writ of possession stayed for 7 days. For any further extension of the stay, the applicants directed to provide the Court with: documentary evidence on the progress of their daughter's loan application to Indigenous Business Australia; and evidence that the payments agreed under the compromise were made to the lender.
Catchwords:	REAL PROPERTY - Possession of land - Application for a stay upon a writ of possession - Action for possession previously compromised to allow the applicants' to sell the property to her daughter with the help of a loan from Indigenous Business Australia - Not clear if the loan application made - Two out of three payments agreed in the compromise not made - HELD: short stay granted to allow the applicants to make the missed payments and provide evidence of the progress of the loan application.
Category:	Principal judgment
Parties:	Plaintiff: Secure Funding Pty Ltd Defendants: Colin West, Judy West
Representation:	Counsel: Plaintiff: O. Newman Defendant: Judy West in person Solicitors:
File Number(s):	2012/302258
Decision under appeal	File Number(s): 2012/302258

EX TEMPORE Judgment

1. Before the Court is an application for a stay upon a writ of possession on a residential property in Kurri Kurri. The application is made by Mrs Judy West on behalf of herself and her husband, Colin, the defendants in these proceedings, which are brought by Secure Funding Pty Ltd ("Secure Funding").

1. Secure Funding is the lender to Mr and Mrs West and mortgagee of their Kurri Kurri property. The mortgage fell into default in approximately April of last year. The loan account between Secure Funding and Mr and Mrs West is now some $31,000 in arrears. The total loan balance owing to Secure Funding is some $164,000, as at 28 May 2013.

1. I am told informally from the Bar table that the Kurri Kurri property has been valued at between $230,000 and $250,000, and possibly more.

1. This is not the first time that this matter has been before the Court in its possession list. Secure Funding sought judgment for possession in these proceedings in March of this year. Its application was compromised upon terms that involved Mr and Mrs West having an opportunity to have the property sold to their daughter Holly, and her partner. It was proposed that their purchase be funded through Indigenous Business Australia ("IBA"). In March the Wests had legal representation. Today Mrs West and her daughter Holly appear unrepresented.

1. I am told from the Bar table that the Wests and their daughter and her partner are all anxious to progress with this loan. Unfortunately, the terms of the agreement which were made in March of this year were that the eviction which was then to take place would be stayed for a period of three months expiring on 13 June 2013, provided that: Mr and Mrs West made the minimum monthly loan repayments in a timely fashion; and kept the plaintiff informed about the progress of the proposed sale of the property. The agreement further provided that if the required payments are not made on time (or the property is not sold before 13 June 2013) the Wests will be required to deliver vacant possession of the property to the plaintiff within 7 days after the service of a notice to that effect. And if this was not done the plaintiff was entitled to execute the writ of possession without further notice.

1. Three loan payments have fallen due since the agreement was entered into: 28 March, 28 April and 28 May 2013. Unfortunately, the payment for 28 March was not made and the West defaulted under the agreement. On 16 April 2013 the plaintiff requested the Wests to deliver vacant possession of the property by 23 April. They did not. And on 30 April the plaintiff requested the Court's Sheriff to re-schedule the eviction. The eviction was scheduled for today, 7 June 2013, at noon.

1. Mrs West's affidavit read today, on which she was not cross-examined, and which I accept, shows she had a motor vehicle accident in Newcastle. This left her injured and out of pocket and unable to make the first 28 March payment. She has supported her explanation of that event with two quotations for the repair of her motor vehicle, which are of the order of together about $2,000.

1. These sums are significant for Mr and Mrs West. She is on a modest income of $650 per week. Her husband, Colin, has a disability support pension, from which he receives approximately $344 per fortnight.

1. Her evidence, which I accept, is that as a result of the car accident she was dazed and confused and unable to work for approximately two weeks due to her injuries. Despite this, she did make the next due payment (of $990) on 28 April 2013.

1. Ms Newman for Secure Funding has indicated to me that there is no dispute the payment was received, certainly a few days later on 2 May 2013. But the third payment which has been due since the agreement was made on 13 March, that is the payment due on 28 May, has not been made.

1. The West's application today is for a stay until 26 July 2013: that is for about another seven weeks. But the difficulty with this application is that that claim for a further stay is in circumstances where: (1) there has been default on the Mortgage between April of last year and the time the compromise agreement was made in March this year; (2) there has been further default since the agreement was made; and (3) the seven weeks stay which is sought does not make a lot of sense in relation to the loan application, for reasons I will now explain.

1. What is proposed as the basis for the stay is that it will give Mr and Mrs West's daughter, Holly, the chance to advance her loan application with IBA. I am told, and the affidavit evidence supports this, that an application was sent to IBA in April 2013, but seems to have gone astray since then. And it was not until Monday of this week, when it looked like the Sheriff's execution of the warrant was imminent, that a check phone call was made to IBA to find out what had happened to Holly's application. Apparently a Mr Hawkins at IBA told Mrs West that it had not been received. Rapid action was taken to rectify that situation. A replacement application form was lodged with IBA on Wednesday, 5 June.

1. The result of that is that Mr Hawkins has now informed Mrs West that a conditional approval might be available within seven days, provided that an adequate valuation of the property was received. The mortgage documents could then be issued two to three weeks later and some four to six weeks would then be required to settle on the loan application, followed by completion of the sale of the land within a total of two to three months. The 26th July looks too tight in relation to that timetable.

1. Ms Newman on behalf of Secure Funding quite rightly says that the timetable certainly looks too tight. She also submits with justification that Mr and Mrs West have undoubtedly been prompted into action by the realisation that the Sheriff would be executing the writ for possession today due to the default which has occurred.

1. She submits that the Court should not grant a stay for seven weeks. I agree with that part of her submissions. On the evidence that I have it really is unclear whether Holly and her partner have put in an application in adequate terms to IBA and unclear that the application has now been received. It is also unclear whether Mr Haskins has accepted this application on behalf of IBA, and whether it comes even close to meet IBA's loan criteria. I am not prepared to give a seven week stay, when the evidence about the reasons for the stay are so inadequate.

1. But I am comforted to give some indulgence by three matters. First, Mr and Mrs West have at least made one payment under the March 2013 compromise. The 28 April payment has been made. Secondly, such evidence as there is indicates that Mrs West and her daughter and her daughter's partner are all in paid employment. Thirdly, in the course of discussion with the Court, Mrs West has offered to rectify compliance with the 13 March compromise to bring her payment position back up to date. She says that the two payments which are due will be paid before next Friday.

1. In those circumstances, I am prepared to grant a stay for seven days. But this is a stay for seven days only. I will reconsider the matter next Friday. If the evidence is not adequate next Friday, then I am likely to lift the stay.

1. I will direct the following:

(1)   Stay the execution of the writ of possession at 51 Barton Street Kurri Kurri for seven days until 14 June 2013.

(2)   Direct that if Mr and Mrs West wish to extend that stay further that they should provide the Court before 10am on Friday 14 June with documentary evidence:

(i)   that they have paid in cleared funds the two payments due in respect of March and May under the consent orders made on 13 March.

(ii)   they provide documentary evidence of the loan application which has been made by Holly West and her partner to Indigenous Business Australia on 5 June.

(iii)   evidence as to the likely timetable for IBA to approve and deal with that application.

Decision last updated: 11 June 2013