St George Bank Ltd v Wong

His Honour : The plaintiff having obtained an order for possession in relation to lending transactions, a notice to vacate the premises has been issued by the office of the Sheriff at Hornsby requiring that that be done by 10 am today.

Yesterday, 22 October 2002, the defendant filed a notice of motion seeking an order for a stay. The notice of motion was made returnable on 1 November 2002 by the Registry. By arrangement with my associate, the proceedings were listed for hearing before me at 8.15 am today.

The property in question is owned by the defendant and is mortgaged to the plaintiff. According to the defendant’s oral evidence given today, the property was purchased about sixteen years ago for a sum of $775,000. At the present time there is a sum of approximately, or possibly a little in excess, of $800,000 owing to the bank. It appears on that evidence that there is sufficient equity in the property to cover the debt.

Mr Thawley, who attended today and whose appearance at short notice is appreciated, tendered evidence of a two year history of default and broken promises in relation to the defendant’s transactions with the bank. Whilst there is in evidence a letter showing that in recent days the defendant has taken some steps to refinance, Mr Thawley submits with some force that, against the history, this is scant evidence of a convincing intention to do so, or of a capacity to do so. Capacity is a significant question, because the Court has no evidence as to the broader financial position of the defendant.

I am satisfied on the evidence that the bank is unlikely to be financially prejudiced by a limited delay in finalising the situation, whether by refinancing or by enforced sale. I propose to stand the notice of motion over to the possession list on 1 November 2002 and to grant a stay up to and including that day. I do so in the expectation that in good time prior to that date the defendant will have filed secure evidence of the value of the property and of the prospect of refinancing.

I offer the defendant no assurances whatsoever that a stay will be continued by the Court as from 1 November 2002. That will depend on the state of the evidence at that time, on the arguments that may be presented, and on the discretion of the judge before whom the proceedings come at that time.

I make the following orders: 1. The notice of motion filed on 22 October 2002 is made returnable for today; 2. I stay the proceedings on the order for possession and in relation to the notice to vacate issued by the Sheriff dated 15 October 2002 until 4 pm on 1 November 2002; 3. I direct the Registry to inform the office of the Sheriff at Hornsby immediately by telephone and facsimile transmission of the order for a stay; 4. I adjourn the notice of motion for further hearing in the possession list on 1 November 2002; 5. I reserve the question of costs of today. -oOo-