Suncorp-Metway Limited v Constantinidis

[2014] NSWSC 248

Supreme Court

New South Wales

Medium Neutral Citation:	Suncorp-Metway Limited v Constantinidis [2014] NSWSC 248
Hearing dates:	13 March 2014
Decision date:	13 March 2014
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	Application for stay of writ of possession granted.
Catchwords:	PROCEDURE - notice of motion - order seeking further stay of writ of possession - stay granted
Cases Cited:	Suncorp Metway Limited v Gonfanon Pty Limited [214] NSWSC 197.
Category:	Procedural and other rulings
Parties:	Suncorp-Metway Limited (Plaintiff) Achilles Constantinidis (Defendant)
Representation:	Solicitors: Mr M Reynolds, MGR Lawyers (Plaintiff) Mr P Beazley, Beazley Singleton Lawyers (Purchaser)
File Number(s):	2012/92062
Publication restriction:	None

EX TEMPORE Judgment

1. HER HONOUR: By notice of motion filed on 13 March 2014, Mr George Barnes seeks an order that the writ for possession of property known as XX XXXXX XXXXX X Road, Freemans Reach be stayed up to and including 11 April 2014. He is the purchaser of that property from the second mortgage.

1. The motion is supported by an affidavit sworn by Mr Barnes on 12 March 2014, as well as by another affidavit which he swore on 19 April 2013 and an affidavit sworn by the defendant, Mr Constantinidis, on 19 April 2013. There is also in evidence a letter from Meridien Securities Limited of 13 March 2014.

1. The plaintiff, Suncorp-Metway Limited, neither consents to nor opposes the order sought observing, however, that if possession of the property were to be obtained by execution of the writ of possession, which is due tomorrow, 14 March 2014, then it will not be in a position to sell the property for some two to three months and that it would be preferable if the settlement of the sale of the property to Mr Barnes, which has been on foot now for a very considerable time, occurs within the next four to six weeks. That will be of advantage to all parties.

1. The plaintiff accepts that the sale of the property to Mr Barnes has been drawn out, through no fault of his. The reason for that has been explained by Mr Beazley, who appeared for Mr Barnes, by reference to other proceedings concerning a property at Windsor, which has the same second mortgagee, and which that mortgagee has sold to another purchaser, a Mr Brown. Settlement of that purchase has been delayed in circumstances discussed in a judgment given by Garling J on 26 February 2014 in Suncorp Metway Limited v Gonfanon Pty Limited [2014] NSWSC 197.

1. Mr Barnes has explained in his affidavits that he has an agreement with Mr Constantinidis that he can remain as a tenant in the property after its sale. Mr Constantinidis has explained in his affidavit that he has health issues. There are plainly hardship considerations which arise in the circumstances, if the writ were to be executed and he had to vacate.

1. The circumstances are such that, but for the lengthy procedural history of the matter, I would have no hesitation in making the orders sought. That history, the file reveals, is one where, for a variety of reasons, the writ has not been executed, despite orders made in June 2012 that Mr Constantinidis give the plaintiff possession of the property. That has been because of, amongst other things, stays either consented to or not opposed by the plaintiff in circumstances where it was thought that a settlement of the sale of the Windsor property was imminent.

1. The stay granted by Garling J in relation to the Windsor property is until 21 March 2014. Meridien Securities Limited have indicated settlement of the sale of the property the subject of these proceedings, can take place within seven days of the settlement of the sale of the Windsor property.

1. In all of those circumstances, and particularly having in mind the attitude of the plaintiff, it seems to me that justice requires that yet a further stay of the writ of execution be ordered. Obviously enough, that has to come to an end.

1. In his affidavit, Mr Barnes indicates that his understanding is that the delay in the settlement of the sale of the Windsor property has been the result of a principal of the vendor being gravely ill. That is something about which Garling J commented in his judgment. These stays must at some point come to an end and, hence, Mr Barnes and Mr Constantinidis have to expect that at some point, if the settlement is not achieved as they hope, further stays will neither be treated in the way in which the plaintiff has treated them to this point, nor will they be entertained by the Court. That point has not yet, however, been reached and, accordingly, I make an order in terms of order 2 sought in the motion.

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