Aquamore Finance Pty Ltd v Blank Canvas Communications Pty Ltd

[2024] NSWSC 1194

Supreme Court

New South Wales

Medium Neutral Citation:

Aquamore Finance Pty Ltd v Blank Canvas Communications Pty Ltd [2024] NSWSC 1194

Hearing dates:

27 August 2024

Date of orders:

27 August 2024

Decision date:

27 August 2024

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

(1)   This motion be returnable instanter.

(2)   Leave be granted to the second defendant to file in Court the notice of motion and the affidavit of Brett William Galloway sworn 4 July 2024.

(3)   The writ of possession on 1 Dunbar Street, Watsons Bay NSW 2030 issued on 9 May 2024 is not be executed prior to 26 September 2024.

(4)   That the plaintiff do all things necessary to facilitate the First Defendant's and Second Defendant's settlement of the sale of the property.

(5)   No order as to costs.

Catchwords:

REAL PROPERTY – possession of land – application to stay execution of writ for possession – impending sale of the property

Cases Cited:

GE Personal Finance Pty Limited v Smith [2006] NSWSC 889

Category:

Procedural rulings

Parties:

Aquamore Finance Pty Ltd (Plaintiff)
Blank Canvas Communications Pty Ltd (First Defendant)
Brett William Galloway (Second Defendant)

Representation:

Counsel:
A Rogers (Plaintiff)
M Gollan (Second Defendant)

Solicitors:
Ronayne Owens Lawyers (Plaintiff)

File Number(s):

2024/94734

Publication restriction:

Nil

ex tempore JUDGMENT (REVISED)

1. This matter comes before the Court by way of a motion filed by the second defendant today, 27 August 2024.

2. The second defendant is seeking a stay of the writ of possession until 26 September 2024 so that he may undertake the orderly sale of the property in which he lives at 1 Dunbar Street, Watsons Bay NSW 2030.

3. The proceedings were commenced by way of a statement of claim filed by the plaintiff seeking an order for possession and judgment in an amount (originally $3,938,258.23) said to be owing by the defendants pursuant to a loan agreement entered into between the plaintiff and the first defendant, and the second defendant as guarantor.

4. Subsequent to the filing of the statement of claim, the plaintiff obtained judgment and an order for possession. Those orders were then stayed by agreement between the parties on the basis that the second defendant would be arranging for his property to be sold and the mortgage discharged.

5. The plaintiff was provided with evidence from valuers estimating that the value of the property may be up to $6 million in circumstances in which the loan facility at that time was something around $4 million. The plaintiff agreed to stay enforcement to allow the orderly sale of the property.

6. As it turns out, the property was sold by the second defendant prior to auction for the sum of $4,800,000. The solicitor for the plaintiff calculates that after payment of all costs associated with sale, the estimated net sale proceeds will be $4,627,000. The completion of the sale is due to take place on 24 September 2024, as set out in the affidavit of Luke Kenneth Owens dated 26 August 2024 on which the plaintiff relies.

7. The indicative payout figure at that time will be $4,545,808.02 meaning that, after discharge of the loan, the second defendant will only have an equity of $81,000 in his property.

8. The background to how the parties come to be in this position is that the first defendant took out the loan in 2023. Unfortunately, the second defendant, a solicitor, was involved in a serious motor vehicle accident on 16 September 2023 which interfered with his ability to work in a significant way. The result was that the income which he had been earning and presumably been using to pay the interest on the loan diminished significantly. I assume that this resulted in him being unable to service the loan.

9. As it turns out, his wife also fell seriously ill. According to the second defendant's affidavit of 4 July 2024, he made attempts to refinance but those attempts were unsuccessful. He thus indicated in his affidavit he intended to sell his property with due expedition.

10. As far as I am aware, the second defendant is a person of good repute who finds himself in this unfortunate position because of a serious accident.

11. In any event, the matter comes before the court today because, although the plaintiff had previously consented to an ongoing stay to allow the sale of the property, the plaintiff no longer consents to a stay because (as expressed by the plaintiff's counsel):

1. the plaintiff has concerns that the sale may not go ahead because the sale price seems to be 20% lower than the anticipated price, and that causes the plaintiff to have some concerns about the genuineness of the sale or the risk that it may not go ahead; and

2. the plaintiff has concerns that the second defendant may resist moving out of his home.

12. The impending sale of a property the subject of the mortgage is a circumstance in which a stay might be given (see GE Personal Finance Pty Ltd v Smith [2006] NSWSC 889). However, the granting of a stay is discretionary and the fact of the sale does not mandate a stay.

13. The plaintiff is entitled to enforce its rights as it wishes to. Having said that, in this matter, and despite the submissions of the plaintiff, there is nothing in the evidence which leads to the inference either that the sale will not go ahead or that the second defendant would resist moving out of the property. He has indicated in his affidavit that he has lived in his home for a significant period, and it will take some time to prepare to move, but there is now a definite date by which he must move.

14. Further, the fact that the purchaser has obtained a good price tends to suggest that the purchaser would be keen to go ahead rather than raising a suspicion that he may not go ahead. I can only draw appropriate inferences having regard to the evidence and there is nothing before me which casts a doubt on the bona fide nature of the sale.

15. I suggested to the parties that a compromise position may be an order that the plaintiff be entitled to possession in the days after the completion date. Both parties have indicated that they would be content with such an order.

16. In the circumstances, the orders that I make are the following:

1. This motion be returnable instanter.

2. Leave be granted to the second defendant to file in Court the notice of motion and the affidavit of Brett William Galloway sworn 4 July 2024.

3. The writ of possession on 1 Dunbar Street, Watsons Bay NSW 2030 issued on 9 May 2024 is not be executed prior to 26 September 2024.

4. That the plaintiff do all things necessary to facilitate the First Defendant's and Second Defendant's settlement of the sale of the property.

5. No order as to costs.

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