Golden J Wealth Pty Limited v AC Holdings Co Pty Ltd

[2019] NSWSC 1361

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Golden J Wealth Pty Limited v AC Holdings Co Pty Ltd [2019] NSWSC 1361
Hearing dates:	4 October 2019
Date of orders:	04 October 2019
Decision date:	04 October 2019
Jurisdiction:	Equity - Commercial List
Before:	Hammerschlag J
Decision:	Motion dismissed
Catchwords:	PRACTICE AND PROCEDURE – stay of writs of execution – on hardship grounds – no hardship established; HELD: stay refused
Cases Cited:	El Khouri v El Khouri [2017] NSWSC 1650 Golden J Wealth Pty Ltd v AC Holdings Pty Ltd [2019] NSWSC 1342
Category:	Procedural and other rulings
Parties:	Golden J Wealth Pty Ltd - Plaintiff AC Holdings Co Pty Limited - Defendant
Representation:	Counsel: V. Bedrossian – Plaintiff E. Yasumoto – Defendant   Solicitors: Bransgroves Lawyers – Plaintiff Zhang Shijing Lawyers – Defendant
File Number(s):	2019/67645

Judgment

1. HIS HONOUR:   These are my reasons for dismissing a Notice of Motion filed by the defendant (AC Holdings) on 2 October 2019 that the execution of writs of possession in respect of two properties be stayed ‘to a time and date fixed by this honourable Court.’ These reasons should be read in conjunction with the judgment I delivered earlier today in the principal proceedings: see, Golden J Wealth Pty Ltd v AC Holdings Pty Ltd [2019] NSWSC 1342. Definitions used in that judgment are used here, except that I shall refer to the Land as defined in the judgment as the properties.

2. Writs of possession have in fact not yet been issued, but Golden Wealth has, as it is entitled to, applied for them.

3. The Motion is said to be based on ‘hardship’. The hardship articulated is that AC Holdings’ director has medical problems which make it difficult for her to come to grips with her having to give up possession of the properties, where I was informed from the Bar table she presently resides. It was also said from the Bar table that she needs four months to find somewhere else to live and has nowhere else to live at present. Where she actually resides, how long she has lived there, what her options for alternative residences are, and why she needs four months were not the subject of admissible evidence.

4. It may be immediately observed that writs are sought in respect of two properties. I was informed from the Bar table, after a question from the bench, that she does not reside in both.

5. The medical evidence tendered is hearsay.

6. Orders for possession were made, in effect by consent, on 20 September 2019 consequent upon an undertaking given to the Court that AC Holdings would give possession to Golden Wealth if payments under the mortgages were not made by 17 September 2019. Payments were not made. The orders for possession reflect the consequences of a consensual position which resulted in a judgment.

7. Counsel for Golden Wealth drew my attention to the decision of McCallum J (as her Honour then was) in El Khouri v El Khouri [2017] NSWSC 1650, where her Honour granted a short stay of a little over two months in a family provision dispute to allow a person an opportunity to put in place a formal mental health treatment plan to prepare herself for the inevitable task of vacating premises where she had lived as the sole carer for her mother who had passed away. The person remained in occupation of the house after her mother’s death. That case bears no relevant resemblance to this one.

8. I am not satisfied that any hardship can be suffered by a company in the sense in which it is sought to be put here, but, if it can, no such hardship has been established by AC Holdings. The orders for possession are the result of a consensual position in which it is not appropriate for the Court to interfere. The contest is a commercial one. Golden Wealth is owed a very significant sum of money by AC Holdings. AC Holdings has made no payments for months, and none has been proffered.

9. As appears from the judgment, AC Holdings’ cross-claim has been dismissed and it is liable for interest at the higher rate from December 2018.

10. Finally, as a matter of practicality, it will no doubt be some weeks before the warrants for possession are issued and capable of being executed.

11. For these reasons, I dismiss the Motion. AC Holdings is to pay Golden Wealth’s costs of it.

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Amendments

10 October 2019 - Catchwords omitted