Secure Funding Pty Ltd v Stark; Secure Funding Pty Ltd v Conway

[2013] NSWSC 1401

Supreme Court

New South Wales

Medium Neutral Citation:

Secure Funding Pty Ltd v Stark; Secure Funding Pty Ltd v Conway [2013] NSWSC 1401

Hearing dates:

20 September 2013

Decision date:

20 September 2013

Jurisdiction:

Common Law

Before:

Davies J

Decision:

ORDERS:

Orders as per Amended SMO agreed between the parties in the following terms:

1. The Defendants file and serve any further evidence in support of their application dated 13 September 2013 by 25 September 2013.

2. The Plaintiff file and serve any evidence in response to the Defendants' application by 1 October 2013.

3. The Defendants to file and serve their submissions in support of their application by 4 October 2013.

4. The Plaintiff to file and serve its submission in response to the Defendants' application by noon on 8 October 2013.

FURTHER ORDERS:

1. Any writs of execution to enforce the judgments of the Court are not to be executed prior to the completion of the hearing of the defendant's Notices of Motion on 9 October 2013 or unless another order of the Court is made.

2. The costs of the hearing of 19 and 20 September are to be costs in the Motion to be heard on 9 October.

3. I will stand over the defendant's Notices of Motion in each case to the hearing of 9 October 2013.

Catchwords:

REAL PROPERTY - possession of land - application for stay of writs of possession - motion to set aside default judgment to be heard within three weeks - plaintiff may have writs issued but not executed prior to hearing of motion

Category:

Interlocutory applications

Parties:

Matter 2012/266739:
Secure Funding Pty Ltd (Plaintiff)
John Charles Stark (First Defendant)
Jennifer Gloria Stark (Second Defendant)

Matter 2013/62391:
Secure Funding Pty Ltd (Plaintiff)
Rex Anthony Conway (Defendant)

Representation:

Counsel:
R Foreman (Plaintiff)
S Balafoutis (Defendants)
Solicitors:
Arnold Bloch Leibler (Plaintiffs)
Brock Partners (Defendants)

File Number(s):

2012/266739 2013 62391

Judgment

1. I commenced to hear yesterday a Notice of Motion filed in each of these matters on the 13th of September 2013. The Notices of Motion sought orders that default judgment that was obtained in each matter be set aside and that enforcement of the default judgment be stayed until the determination of the Motion.

1. What I heard was simply an application for a stay of any further proceeding until prayer 1 in the Notice of Motion, which sought the setting aside of the default judgment, could be determined. It was accepted by the parties that there would not be the time to hear the entirety of the Motion relating to whether the judgment should be set aside in the Duty Judge List.

1. At the end of the hearing yesterday I was at the stage where I had heard from the Defendants, but had not managed by reason of time to hear submissions on behalf of the Plaintiff, who resisted any application for a stay as well as for the setting aside of the default judgment. I suggested because it would be necessary to resume the matter part heard today if there were time that the parties should approach the listing manager to see if it was possible to obtain a relatively early date for the hearing of the balance of the Notice of Motion. I also suggested that an approach be made to Black J to see if he had the availability to hear the balance of the Notice of Motion, given that he had delivered a considered judgment on a similar application for a stay on 5 September.

1. Those enquiries overnight ascertained that there were one or two early dates available for the hearing of the balance of Motion and, in the event, the Notice of Motion is now to be heard in its entirety on the 9th of October.

1. The Plaintiff does not wish in the meantime to be prevented from the setting in train events which would enable it to execute on the judgments already obtained. I think I can take judicial notice of the fact that the obtaining of the writ followed by the notice to vacate and the actual execution on the writ ordinarily takes about five or six weeks. That is a period of time well beyond the 9 October. It seems to me inappropriate that the Plaintiff should be allowed to execute on these writs prior to the hearing of the Motion for the setting aside of default judgment. The Plaintiff does not concede that that should be so. It opposes, based on what on the face are justifiable reasons, any further stay in the matter.

1. Because, as a matter of practicality, execution is extremely unlikely to be able to be effected by the 9th of October, I will permit the Plaintiff to commence taking whatever steps are necessary towards that execution, but I will not permit the execution to take place before the Motion is heard. It will be for the judge who hears the Motion to determine what further action should be taken in relation to that stay. As I have said, the Plaintiff does not consent to that course, but nevertheless that is what I intend to do.

1. The orders that I make are these:

1. Any writs of execution to enforce the judgments of the Court are not to be executed prior to the completion of the hearing of the Defendants' Notices of Motion on 9 October 2013 or unless another order of the Court is made.

2. The costs of the hearing of 19 and 20 September 2013 are to be costs in the Motion to be heard on 9 October 2013.

3. I give the directions contained in paragraphs 3, 4, 5 and 6 of the proposed minutes of order and I stand over the Defendants' Notices of Motion in each case to the hearing of 9 October 2013.

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Decision last updated: 20 September 2013