Stacks Managed Investments Limited v Rambaldi and Cull

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.