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 residential property.
At 2pm on the day before the scheduled eviction of the residential property, the defendants sought a stay, on the basis that:
- 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; and
- 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 $160,000; and
- 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 credible".
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.
Footnote
1GE Personal Finance Pty Limited v Smith [2006] 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.
