Suncorp Metway Ltd v Gonfanon Pty Ltd
[2014] NSWSC 197
•26 February 2014
Supreme Court
New South Wales
Medium Neutral Citation: Suncorp Metway Ltd v Gonfanon Pty Ltd [2014] NSWSC 197 Hearing dates: 26/02/2014 Decision date: 26 February 2014 Jurisdiction: Common Law Before: Garling J Decision: (1) Order that the stay granted by Bellew J, on 25 November 2013, on the execution of the writ of possession be extended up to and including 5pm, 21 March 2014.
(2) Order that the extension of the validity of the writ ordered by Bellew J on 4 December 2013 be extended so that the writ remains valid up to and including 5pm, 18 April 2014.
(3) Grant leave to the parties to apply on 24 hours notice.
Catchwords: PROCEDURE - civil - extension of stay on the execution of a writ of possession; application for -extension of the validity of the writ; application for - whether in the interests of justice Category: Procedural and other rulings Parties: Suncorp Metway (P)
Gonfanon Pty Ltd (D)Representation: Counsel:
M Reynolds (P)
A Brown (D)
File Number(s): 2011/000334420
EX TEMPORE Judgment
Mr Andrew Brown, who is presently a resident of a property known as 232 Cornwallis Road, Cornwallis, has applied to the Court by way of a Notice of Motion seeking orders that provide for an extension of the stay on the execution of a Writ of Possession and making provision for an extension of the validity of the Writ.
The matter has a long and protracted history. It commenced in 2011 when Suncorp Metway Ltd (Suncorp) sued Gonfanon Pty Ltd (Gonfanon) because of a default with respect to a loan sought to obtain judgment for possession of the property. The title of the property is complex. In addition to Suncorp, which has a first mortgage over the property, there is also a second mortgage issued by a company Rural Security Holdings Pty Ltd (Rural Security). It seems that the second mortgage to Rural Security is also in default because Rural Security has exercised a power of sale with respect to the property.
A company, Singbear Pty Ltd (Singbear) of which Mr Brown is a director has entered into a contract to purchase the property from Rural Security which is executing its powers of sale as a mortgagee.
The protracted history of the matter has included in more recent times a series of orders of a judge of this Court granting a stay on the Writ of Possession.
The recent history commences with an application made to Bellew J as the Duty Judge on 25 November 2013, when his Honour was persuaded to grant a stay of the Writ of Possession until 4 December 2013. On 4 December 2013, his Honour was persuaded to grant a stay up to and including 21 December 2013.
It is a little unclear what happened at the expiry of that date but on 10 January 2014, Rothman J extended the stay granted by Bellew J, so that it expired at 4pm on 24 January 2014.
On 30 January 2014, Registrar Bradford extended the stay by consent, to 21 February 2014.
The matter has come before me today with Mr Brown seeking a further extension of the stay.
It seems to be common ground between the parties that the settlement of the sale of the property by Rural Security, the second mortgagee, and the purchase of the property by Singbear, has been unduly delayed by reason of the adverse health of a director of Rural Security. Apparently Rural Security is a small company and by reason of the illness of the director, has been unable to attend the settlement.
According to an affidavit of Mr Brown sworn 29 January 2014, the particular director of Rural Security has been in hospital for six weeks. He says:
"This has provided difficulties for me in arranging the settlement as [the director] is required to personally authorise the transfer of the property as well as provide current letter of release from the respective caveat holders."
I must confess that I do not understand on the evidence before me why it is that Rural Security, which instructed solicitors to prepare a contract and act on the conveyance of the land, cannot instruct those solicitors to take all steps necessary to effect a settlement of the sale of the property.
It is quite unclear to me why the physical presence of a director of Rural Security is necessary, nor does that sound, on the limited information which I have, to be either reasonable or rational.
It is unsurprising that the solicitor for Suncorp, Mr Reynolds who has appeared by telephone, has expressed his client's frustration at the number of extensions of time which the Court has granted due to the apparent inability of Rural Security to make the necessary arrangements to settle the sale. However Mr Reynolds fairly does not suggest that the director of Rural Security is not unwell nor does he suggest that Mr Brown himself has done anything which has contributed to the delay.
Suncorp, which has previously consented to the stay, does not consent to this application. Equally Suncorp does not put any opposition to the application. The grant of any application for the extension depends upon the interests of justice generally and the particular interests of the parties.
It seems to me that the sale price of this property is sufficient to ensure the complete discharge of the debt owed to Suncorp under its mortgage. Further, it seems to me that on the evidence, Mr Brown has in place a firm arrangement for the funding of the purchase. As is clear, what is holding the settlement up is the illness of the director of Rural Security, which cannot be laid at the feet of Suncorp or Mr Brown.
Given that the benefit to Suncorp is that it will have its first mortgage discharged including all interest, and having regard to the fact that if I was not to grant a stay, there would be considerable disruption for Mr Brown and his family, and further assuming that Suncorp obtained possession of the property and moved to sell it, a real risk of further litigation between the first and second mortgagees, and Mr Brown, with respect to the arrangements surrounding the sale of the property, I am satisfied that it is in the interests of justice to extend the stay and also the validity of the Writ.
I should say, however, that no party should expect that the Court will continue to grant adjournments of this proceeding and continue to grant an extension of time so as to comply with Writs which the Court has issued. The Court ordinarily does not extend time for Writs to be executed, as a matter of course, and if any further extension is necessary, proper evidence of the reasons for the delay and the reasons for the extension should be filed and put before the Court. It will be a matter for any future application being determined by a judge to be determined on the basis of that evidence.
I make the following orders:
(1) Order that the stay granted by Bellew J, on 25 November 2013, on the execution of the writ of possession be extended up to and including 5pm, 21 March 2014.
(2) Order that the extension of the validity of the writ ordered by Bellew J on 4 December 2013 be extended so that the writ remains valid up to and including 5pm, 18 April 2014.
(3) Grant leave to the parties to apply on 24 hours notice.
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Decision last updated: 07 March 2014
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