Barrington Winstanley Group Pty Ltd v Edmonds

The matter listed before the Court today is a Notice a Motion filed by Sandra Edmonds and David Edmonds (“the defendants”) on 14 October 2025 (“the motion”).

The substance of the motion was the seeking of a stay of orders made by Justice Faulkner on 6 August 2025 for, inter alia, possession of property by Barrington Winstanley Group Pty Ltd (“the plaintiff”) until the final disposition of an intended appeal by the defendants from his Honour's judgment, or judgments.

An interim stay was granted by Cavanagh J on 14 October 2025. The matter subsequently came before Adams J to consider whether or not there should be an extension of that interim stay.

In Barrington Winstanley Group Pty Ltd v Edmonds (Supreme Court (NSW), Adams J, 21 October 2025, unrep) at [1] to [32], Adams J set out the following history of the proceedings, which, for the purposes of this short judgment, I propose to adopt:

At the mid-point of her Honour's judgment, Adams J posed the question: Should the stay of a writ of possession be granted? The ultimate conclusion reached by her Honour was that she would not make a determination in that respect (that is, to grant such a stay or an extension of the stay), but rather, would hold the matter over for the final hearing of the motion. This judgment concerns the final hearing of the motion.

The orders made on 21 October 2025 were that, inter alia, “[t]he motion be stood over for final hearing on 7 November 2025 with an estimate of half a day”. There have been various transactions in the proceedings, by way of exchanges with my chambers, in the intervening period. There was no suggestion in those exchanges by either party that anything, other than a final hearing of the motion, was scheduled today.

The circumstances in which her Honour, Adams J, came to the conclusion that the matter should be stood over for final hearing may be summarised as follows:

Counsel for the plaintiff, Mr Pesman SC, was correct to submit that, each of the judgments given by Justice Faulkner on 6 August 2025 were interlocutory in nature, and accordingly, leave would be required to bring an appeal from those judgments.

In her decision, Adams J also considered the potential that new solicitors may be briefed in the matter (Barrington Winstanley Group Pty Ltd v Edmonds (Supreme Court (NSW), Adams J, 21 October 2025, unrep) at [36], [48]). At the hearing Mr Choy appeared as agent for Mr Smits, who is the solicitor on the record for the defendants, and it would appear, also the solicitor on the record for the fifth defendant, being an entity which Mr Smits is associated with. I made some observations during the hearing about Mr Smits appearing on the record in the proceedings, but do not propose to say anything further about that in this judgment. The concerns, in my view, are obvious and have been the subject of earlier reference in the judgments of this Court.

There was a suggestion by Mr Choy, that the matter may have been listed for mention, to set a timetable for final hearing. There would seem to be at least a hint of such a proposition in some affidavits, which were received by the Court on the motion, but not read in the proceedings for today.

The notion that the matter was listed for listed for mention today is nonsense. There is nothing in the record before the Court which would indicate the same. The decision of Adams J made it abundantly clear that the motion would be heard today, and did so in a particular context, in which, whilst no extension of the stay was granted, no enforcement action would be taken by the plaintiff in the intervening period. Various affidavits were filed in anticipation of a hearing. In any event, when Mr Choy was appraised of that fact, he indicated that he did not have instructions to proceed with the application for the stay, that is, to press the motion today.

Significantly, the step that Adams J contemplated be taken before the 7 November 2025, namely, the filing of an appeal (or, one may interpolate, a summons for leave to appeal) from the judgment, or judgments, of Faulkner J, has not occurred. While the material is not before the Court in any formal way, I note that there would appear to be a Notice of Appeal in existence. So much is evident from a white book which was provided to my chambers but which has not been formally filed with the Court, and was also suggested in affidavits that have been filed with the Court but not read on the motion.

I give that brief summary, in addition to the history provided by Adams J and, in many respects, the history earlier provided by Faulkner J, to demonstrate that the procedural history of the matters since the bringing of the Statement of Claim by the plaintiff is unfortunate.

In any event, it is a complex set of processes, in many respects reflected by the Notice of Appeal to which I have referred which, again, raises as many questions as it answers, in terms of the form of the motion.

Mr Choy properly acknowledged, in my view, that:

Whether for that reason, or because of the procedural history I have outlined, or because of the other deficiencies in the process to which her Honour, Adams J referred, I am firmly of the view that the motion should be dismissed with costs.

The Court makes the following orders: