Stacks Managed Investments Limited v Rambaldi and Cull - [2020] NSWSC 722

Supreme Court

New South Wales

Medium Neutral Citation: Stacks Managed Investments Limited v Rambaldi and Cull as trustees of the Bankrupt Estate of Reinhardt [2020] NSWSC 722
Hearing dates: 28 May 2020
Date of orders: 28 May 2020
Decision date: 28 May 2020
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
(1) I stay the execution of the writ of possession so that it may not be executed prior to 5:00pm on 28 June 2020
(2) I also order that the applicants on the motion, Sara Ducat and Denis Reinhardt, be added to the proceedings as the second and third defendants.

Catchwords: MORTGAGES AND SECURITIES — mortgages — duties, rights and remedies of mortgagee — possession — application for stay of execution of writ of restitution — possible application of Farm Debt Mediation Act 1994 (NSW) — prospect of refinancing and hardship
Legislation Cited: Bankruptcy Act 1966 (Cth), Pt 10 Div 2
Farm Debt Mediation Act 1994 (NSW), s 5
Cases Cited: GE Personal Finance Pty Ltd v Smith [2006] NSWSC 889
Category: Procedural and other rulings
Parties: Stacks Managed Investments Limited (Plaintiff)
Gess Michael Rambaldi and Innis Anthony Cull as trustees of the bankrupt estate of Denis Walter Reinhardt (Defendants)
Sara Ducat and Denis Reinhardt (Applicants)
Representation:
Counsel:
R Parsons (Applicants)
Solicitors:
Paul Anthony Stack Lawyers (Plaintiff)
O’Neill Partners (Applicants)

File Number(s): 2020/35012
Publication restriction: None

revised ex tempore Judgment

This matter comes before me as duty judge by way of an urgent application filed on behalf of Sara Ducat and Denis Reinhardt as applicants seeking an order that enforcement of the judgment and writ of possession be stayed.
Mr Parsons appears for the applicants and Ms Cooper appears as agent for the solicitors for the plaintiff, Stacks Managed Investments Limited. I am grateful for their helpful submissions and, in particular, grateful to Ms Cooper for allowing the matter to proceed even though relevant information had not been provided to her in advance.

Background

Ms Ducat and Mr Reinhardt are the occupiers of the relevant property in the circumstances which I will outline. Ms Ducat and Ms Reinhardt seek to be joined as parties to the proceedings as defendants, no doubt for the purposes of this and any further applications. The applicants are partners in both their personal and business relationship.
The application is brought at the very last minute, as seems to be happening more regularly in this Court. The application is brought when the Sheriff is either at the door or about to be at the door. Whilst the plaintiff was given notice of the application, it was not provided with any documents in support of the application until during the course of the oral argument.
I must say that it is a little puzzling why parties are not able to exchange relevant documentation such as the motion and affidavit in advance of the matter actually coming before the Court in circumstances in which persons such as the applicants in this matter would be well aware that the…

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.

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Details

Case: [2020] NSWSC 722
Decision Date: 28 May 2020

CaseChat Overview and Summary

Stacks Managed Investments Limited filed an application against Rambaldi and Cull for a writ of restitution of possession of premises. The defendants sought a stay of execution pending the hearing of their application for leave to appeal against a decision of the Supreme Court of New South Wales. The appeal related to the refusal of the trial judge to stay execution of a writ of possession pending the possible application of the Farm Debt Mediation Act 1994 (NSW). The Full Court was required to decide whether the defendants had demonstrated that there was a serious question to be tried concerning the applicability of the Farm Debt Mediation Act 1994 (NSW), and if so, whether the defendants had shown that they had a real prospect of being able to refinance the mortgage debt and avoid the loss of their property.

The Full Court noted that the defendants had raised the issue of the applicability of the Farm Debt Mediation Act 1994 (NSW) for the first time on the hearing of the application for leave to appeal. The Court held that it was not appropriate to grant leave to appeal in those circumstances. The Court further held that even if the issue had been properly before it, the defendants had not demonstrated that there was a serious question to be tried concerning the applicability of the Act. The Court held that the defendants had not shown that they had a real prospect of being able to refinance the mortgage debt and avoid the loss of their property. The Court held that the defendants had not demonstrated that they had suffered or would suffer any significant hardship if the writ of restitution were executed.

The Full Court dismissed the defendants' application for leave to appeal and refused the application for a stay of execution of the writ of restitution of possession.

Orders