The Trust Company (Australia) Ltd (formerly known as Permanent Trustee Company Ltd) v Galloway (also known as Gallaway)

[2013] NSWSC 1571

Supreme Court

New South Wales

Medium Neutral Citation:

The Trust Company (Australia) Ltd (formerly known as Permanent Trustee Company Ltd) v Galloway (also known as Gallaway) [2013] NSWSC 1571

Hearing dates:

17/10/2013

Decision date:

17 October 2013

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

Upon the undertaking of the defendant through his counsel:

(a) To pay damages in accordance with the usual undertaking; and

(b) To give to the plaintiff vacant possession of the property comprised in folio 1/10036791 known as XXXXX on 15 November 2013, should the plaintiff's mortgage not be discharged by that date;

The Court orders that:

(1) The operation of the writ of execution issued on 27 August 2013 be stayed so that it is not executed on or before 15 November 2013;

(2) The defendant is to pay the plaintiff the sum of $15,000 by 1 November 2013, such payment is on account of mortgage number 9559290.

Catchwords:

PRACTICE AND PROCEDURE - application for a stay of a writ of execution - no question of principle

Category:

Procedural and other rulings

Parties:

The Trust Company (Australia) Limited (formerly known as Permanent Trustee Company Limited) (plaintiff)
Brett William Galloway (also known as Brett William Gallaway) (defendant)

Representation:

Counsel:
R Lewin, solicitor (plaintiff)
D Allen (defendant)
Solicitors:
Gadens Lawyers (plaintiff)
Leigh Johnson Lawyers (defendant)

File Number(s):

2013/102108

EX TEMPORE Judgment

1. This matter is an application for a stay of a writ of possession which is due to be executed tomorrow.

1. During the course of discussion with the legal representatives of the parties earlier this afternoon, I indicated that I was, in the somewhat particular circumstances of this case, prepared to grant a short stay. There were three factors I mentioned and I repeat them now for the purpose of this judgment.

1. The first is the hardship that would be caused to the defendant's daughter if I permitted the Sheriff to deliver possession to the plaintiff tomorrow. That young lady commenced her Higher School Certificate, together with all the other year twelve students in New South Wales, on Monday. The hardship that might be caused to an innocent young person is a factor which favours the grant of the stay.

1. The second reason was that, although the debt due is a very significant one of around $1.769 million, it seems common ground that the mortgaged property has a value in Sydney's notoriously rising property market of in excess of $2.4 million.

1. The third reason is that, although the evidence before me it is not entirely clear, I am persuaded, to the extent necessary on an application for interim relief, that there is a very good prospect of the defendant organising re-finance over the coming month.

1. I would add to those three reasons the following considerations. The defendant through his counsel has given the usual undertaking as to damages. The defendant seems to be a man of some means and he is a professional. The undertaking is accordingly worth something, but, more importantly, he has agreed by way of undertaking to the Court to surrender vacant possession of the property on Friday 15 November 2013 should he be unsuccessful in refinancing and discharging the plaintiff's mortgage. Moreover, he consents to making a substantial cash payment within the next couple of weeks.

1. For all of those reasons, I am satisfied that I should make orders in the following form:

Upon the undertaking of the defendant through his counsel:

(a)   To pay damages in accordance with the usual undertaking; and

(b)   To give to the plaintiff vacant possession of the property comprised in folio 1/10036791 known as XXXXX on 15 November 2013, should the plaintiff's mortgage not be discharged by that date;

the Court orders that:

(1)   The operation of the writ of execution issued on 27 August 2013 be stayed so that it is not executed on or before 15 November 2013;

(2)   The defendant is to pay the plaintiff the sum of $15,000 by 1 November 2013, such payment is on account of mortgage number 9559290.

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