Talston Pty Ltd v Daisley - [2004] VSC 23

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 5459 of 2003

TALSTON PTY LTD	Plaintiff
v
GAIL DAISLEY	Defendant

JUDGE:	KAYE J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 January 2004
DATE OF JUDGMENT:	23 January 2004
CASE MAY BE CITED AS:	Talston Pty Ltd v Daisley
MEDIUM NEUTRAL CITATION	[2004] VSC 23

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Stay on execution of judgment

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J.W. Kewley
For the Defendant	Mrs Daisley John McLoughlin	In Person Victoria Legal Aid

HIS HONOUR:

In this matter the plaintiff, Talston Pty Ltd ("Talston") has issued a summons seeking orders, among other matters, that the defendant's undertaking recorded in the order of the Chief Justice dated 27 November 2003 be immediately reinstated and that the order for possession contained in paragraph 2 of the order of Master Wheeler dated 13 October 2003 also be immediately reinstated.

I shall briefly set out the background circumstances relating to the application by the plaintiff. In May 2002, Talston advanced a sum of $640,000 to one Geoffrey Borch. That loan was secured by a mortgage granted by Borch to Talston over a property known as Eramosa Lodge, 216 Eramosa Road, West Moorooduc.

On 28 June 2002, Borch and the defendant, Mrs Gail Daisley, executed a document which is entitled "Irrevocable Lease Agreement". By that document Mr Borch purported to lease the property to the defendant, Mrs Daisley, for a period of two years from 28 June 2002. The document provided for payment of rent of $2,000 per month.

In September 2002, Mr Borch defaulted on the mortgage. Talston thereupon served a notice to pay. In the meantime, on 7 June 2002 the defendant executed a document in the form of a contract for the purchase of the land from Mr Borch, and the contract stated the purchase price to be $850,000.

The present proceedings were issued by Talston against the defendant in April 2003. By those proceedings Talston claimed possession of the land from the defendant.

By a summons dated 22 August 2003 the plaintiff made application for summary judgment against the defendant. That application came before Master Wheeler, who, on 13 October 2003, made the following orders, in substance:

1.That the plaintiff be relieved from the requirement to serve a copy of all documents on which it relied before the hearing.

2. That the plaintiff recover possession of the land.
3.That the defendant pay the plaintiff's costs of the proceedings including costs of that summons.

4. There be a stay of execution until 13 November 2003.

What is relevant to the application before me is really the events that have occurred since date. On 13 November 2003 the defendant issued a notice of appeal. On the same day she came to this Court and obtained an ex parte order from Hansen, J. that the time for her appeal be extended. The appeal came on for hearing before the Chief Justice on 27 November 2003. On that day the defendant, it appears,…

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.

Continue reading Talston Pty Ltd v Daisley

Details

AGLC: Talston Pty Ltd v Daisley [2004] VSC 23
Case: [2004] VSC 23
Decision Date: 23 January 2004

CaseChat Overview and Summary

Talston Pty Ltd, the plaintiff, sought to enforce a judgment of possession against Gail Daisley, the defendant, who had occupied a property subject to a mortgage held by Talston. The case before Kaye J involved an application by Talston to reinstate a previous order for possession against Daisley. The plaintiff argued that the defendant had previously been granted multiple stays of execution, which had not resulted in the defendant discharging her debt to the plaintiff. The central legal issue was whether Kaye J should grant a further stay of execution to allow Daisley to potentially discharge the debt, given her history of unfulfilled promises to do so. Kaye J considered the discretion available under Rule 66.16 of the Supreme Court Rules and noted the precedent that a stay should not be granted if it would undermine the enforcement of a court's judgment. Kaye J also highlighted the defendant's previous failed attempts to secure finance to pay off the debt, which cast doubt on the likelihood of success in any future attempts. Ultimately, Kaye J refused to grant a further stay, reasoning that the plaintiff was entitled to enforce its judgment and that the defendant's previous history did not provide sufficient grounds to believe that a further stay would be productive. The court ordered that the previous stay be vacated but granted the plaintiff a short reprieve from enforcing the possession order to allow the defendant to remove her belongings with minimal disruption. The court also ordered costs on a party-party basis.

The final orders were that the stay granted to Daisley by Mandie J on 19 December 2003 be vacated, and that Talston refrain from enforcing the possession order for seven days to allow Daisley to remove her belongings with minimal disruption. Costs were ordered on a party-party basis.

Orders