Westpac Banking Corporation v Petroni

[2013] NSWSC 1124

Supreme Court

New South Wales

Medium Neutral Citation:

Westpac Banking Corporation v Petroni [2013] NSWSC 1124

Hearing dates:

15 August 2013

Decision date:

15 August 2013

Before:

Adamson J

Decision:

(1) The order sought in prayer 2 of the notice of motion filed in Court on 15 August 2013 is refused.

(2) Direct the defendants/applicants to file and serve any evidence on which they propose to rely in support of the motion by Wednesday 31 August 2013.

(3) Stand the matter over for further directions before the Registrar on Friday 23 August 2013.

Catchwords:

PRACTICE AND PROCEDURE - application to stay removal of personal property - application overtaken by events

Category:

Interlocutory applications

Parties:

Westpac Banking Corporation (Plaintiff)
Lawrence John Petroni (First Defendant)
Kylie-Ann Petroni (Second Defendant)

Representation:

Counsel: K Fraser (solicitor) (Plaintiff)
PA Bushby (solicitor) (Defendant
Solicitors: Kemp Strang (Plaintiff)
Loke Bushby International (Defendant)

File Number(s):

2011/228989

Publication restriction:

Nil

Judgment

1. In this matter Lawrence and Kylie-Ann Petroni have filed a notice of motion in court this morning seeking various orders, including that the execution of a writ of possession of property at 10 Allambie Street, Jerrabomberra, New South Wales be stayed until November, on certain conditions. They also seek an order that the plaintiff be restrained from removing the defendants' possessions from that property, and other consequential orders.

1. Mr Bushby, who appears on behalf of the defendants/applicants, informed me that the only order that is sought from me today is the second prayer, namely, that the plaintiff be restrained from removing the defendants' possessions from their property. He informed me that the reason that the stay is sought is that the defendants have been able to refinance the loan which gave rise to the writ of possession, but that the lender requires certain conditions to be fulfilled before that loan can be completed.

1. Ms Fraser, who appears on behalf the plaintiff, informed me that the sheriff attended the property on 25 July 2013 and executed the writ of possession, by taking possession of the property. She says that, accordingly, prayer 1 of the notice of motion has been overtaken by events and is futile.

1. Prayer 2, in a sense, depends on prayer 1, in that it is an attempt to preserve the status quo until this Court can hear the defendants' application for a stay.

1. Mr Bushby, whose affidavit sworn 14 August 2013 is relied on in support of the notice of motion, informed me from the bar table that, in substance, the basis for the application for the stay is that the defendants have been able to obtain refinance and they ought be permitted to use that refinance to pay out the loan.

1. I do not have access to the court file and, therefore, I am not sure of when the writ of possession was issued by this Court. However it was executed by the sheriff on 25 July 2013. Mr Bushby submitted that it was only partially executed, but it appears, at least, that possession of the property was obtained by the sheriff on that day.

1. Because of the limited basis on which the stay is sought and the associated prayer for an order restraining the removal of the property I am not disposed to interfere with the plaintiff's legal right to remove the defendants' possessions from the property at Jerrabomberra, it having obtained a writ of possession which has been executed.

1. Whilst I understand, at least on the basis of the limited material which Mr Bushby has been able to provide in his affidavit of 14 August 2013, this will cause the defendants hardship, nonetheless, the availability of refinance, particularly having regard to the history of the matter, is not a reason to interfere with the plaintiff's legal rights.

Orders

1. I make the following orders:

(1)   The order sought in prayer 2 of the notice of motion filed in Court on 15 August 2013 is refused.

(2)   Direct the defendants/applicants to file and serve any evidence on which they propose to rely in support of the motion by Wednesday 31 August 2013.

(3)   Stand the matter over for further directions before the Registrar on Friday 23 August 2013.

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Decision last updated: 16 August 2013