Commonwealth Bank of Australia v Danny Pereira

[2011] NSWSC 961

Supreme Court

New South Wales

Case Title:	Commonwealth Bank of Australia v  Danny Pereira & Ors
Medium Neutral Citation:	[2011] NSWSC 961
Hearing Date(s):	26/07/2011
Decision Date:	26 July 2011
Jurisdiction:	Equity Division - Duty List
Before:	Brereton J
Decision:	Execution of writ of possession stayed until 6 August 2011.
Catchwords:	PRACTICE AND PROCEDURE - Application for stay of writ of possession - defendants require further time to obtain finance to discharge debt - case for stay weak - no prejudice to be suffered by plaintiff - stay granted.
Legislation Cited:
Cases Cited:
Texts Cited:
Category:	Principal judgment
Parties:	Commonwealth Bank of Australia (plaintiff) Danny Pereira (first defendant) Joaquim Pereira (second defendant) Corina Pereira (third defendant)
Representation
- Counsel:	Counsel: Mr M Manousaridis (plaintiff) Mr C Cassimatis (defendants)
- Solicitors:	Solicitors: Henry Davis York (plaintiff) Mitry Lawyers (defendants)
File number(s):	2009/290418
Publication Restriction:

Judgment (ex tempore)

1. HIS HONOUR: On 8 June 2011 when sitting as Duty Judge I heard a motion filed on 6 June 2011 by the defendants Danny Pereira, John Pereira and Corina Pereira, who sought orders setting aside judgments previously given in the proceedings - including for possession of the property of the second and third defendants situate at and known as XXX-XXX Canterbury Road, Canterbury, and the consequential issue of a writ of possession. At the end of that argument I was in a position to give judgment but the Court was then advised that the Sheriff would not, in any event, be executing the writ of possession until 28 July 2011. In those circumstances, without granting a stay, I adjourned the proceedings to 22 July 2011. On that day, by consent, the motion insofar as it sought to set aside the earlier orders, was dismissed and at the request of the parties, and the application for a stay was adjourned to this morning.

1. The evidence placed before the Court on the last occasion included evidence to the effect that applications were being made for finance and if approved an unconditional approval was anticipated within twenty-one working days - that is to say, on 27 June or 28 June, practically a month ago.

1. Today, the defendant has put before the Court evidence of two offers of finance. One of them was dated 6 July and there was not really any satisfactory explanation as to why it has not been implemented and the finance raised by this stage. Another, dated 25 July, was propounded by defendant as an unconditional offer, but it is far from that.

1. The defendants now say that they need another fourteen days to complete raising finance, execute the mortgages and refinance so as to discharge the debt.

1. The case for a stay is, I think, a very weak one, given the manifest defects in the offers that have been put forward. On the other hand, the plaintiff fairly concedes that there is no prejudice to it from the grant of a stay, in that the security property is still ample to secure the interest that has accrued in the meantime.

1. Having regard to the balance of prejudice, I propose to grant a stay for fourteen days. The defendants must understand that the prospects of that being extended subsequent to the expiration of those fourteen days are remote in the extreme.

1. Upon the defendants by their counsel giving to the Court the usual undertaking as to damages, I order that insofar as any writ of possession might have issued in these proceedings, its execution be stayed until and including 9 August 2011. I order that the defendants pay the plaintiff's costs of today.

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