The Supreme Court has a wide discretion to stay the execution of
a Writ of Possession. The Courts have long held that this
discretion is to be exercised in a variety of circumstances
including when there are hardship grounds, a refinance is imminent
or the subject property is to be sold.
Kemp Strang was recently involved in a case before Justice
Hamill in the Supreme Court of NSW which examined whether the
evidence presented to the Court was sufficiently "reliable or
credible" to warrant the exercise of that discretion. We are
currently awaiting a copy of the published Judgment but we can
provide the following short summary in respect of the matter.
Kemp Strang acted for ANZ in these proceedings and had obtained
judgment for debt and possession of two properties against the
first and second defendants.
The Bank took vacant possession of the first property, being a
commercial property, and began marketing it for auction which was
set to take place in late May 2014. The Bank also took steps to
schedule an eviction in respect of the second property, being a
At 2pm on the day before the scheduled eviction of the
residential property, the defendants sought a stay, on the basis
a contract for sale for $1.6m had been exchanged in respect of
the commercial property, which would discharge the majority of the
defendants' debt to the Bank; and
an unconditional letter of offer had been provided by another
Bank in respect of a refinance of the residential property and that
would satisfy the balance of the Bank's debt.
The Bank made submissions to the Court that the evidence before
the Court fell short of being "reliable or credible" as
provided in GE Personal Finance Pty Limited v Smith (refer
footnote 1 below).
The Bank made submissions that:
the $1.6m contract for sale before the Court had a sale price
which was double the current valuation held by the Bank and did not
accord with the price guide provided by the agent who had been
marketing the commercial property for auction. The Bank further
stated there was no evidence of the $160,000 deposit having been
paid in the form a trust receipt; and
the letter of offer provided to the Court was dated December
2013 and was made out to the first defendant who was declared
bankrupt in February 2014.
The Judge granted a short stay on the condition that the first
and second defendants provided the Bank within 24 hours with
"reliable and credible" evidence in support of their
application for a stay, being:
a copy of a trust receipt in respect of the $160,000 deposit;
a current and valid letter of offer.
The first and second defendants subsequently provided the Bank
with the following:
a letter from a Real Estate agency confirming that it held the
a letter confirming that the December 2013 application for
finance made by the first defendant remained "valid".
This letter was not supported by any evidence that the refinancing
Bank was aware that the first defendant was bankrupt.
The Bank re-listed the matter and the Judge dissolved the stay
finding that the evidence that had been provided to the Court fell
short of the requirement that it be "reliable and
This case shows that when a plaintiff who has obtained a writ of
possession is faced with an application for a stay of the execution
of that writ, if a defendant is to be successful in obtaining a
stay the evidence required by the Court needs to be both
"reliable and credible".
This case also suggests that when the Court is presented with
evidence that seems unusual in circumstances, the court can require
the party to provide further evidence to verify the reliability and
credibility of the evidence given to the Court.
1GE Personal Finance Pty Limited v
Smith  NSWSC 889
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Kemp Strang has received acknowledgements for the quality of
our work in the most recent editions of Chambers & Partners,
Best Lawyers and IFLR1000.
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