Capital Securities XVI Pty Ltd v Tortora (No 2)

This is an application for a stay of a writ of possession. This is the fourth application for stay of a writ of possession regarding these particular defendants.

The plaintiff obtained a judgment for possession on 6 April 2017 and a writ of possession on 14 September 2017. After notification by the Sheriff of the intention to enforce the writ on 25 October 2017, the defendants were successful in obtaining an ex parte order for a stay of eviction on the basis of proposed refinance.

Orders were made by consent on 26 October 2017 extending the stay until 9 November to enable completion of that refinance but the refinance offers were apparently withdrawn.

On 9 November 2017, a further indulgence was granted until 23 November 2017 on an undertaking that the defendants personally vacate the property by 23 November 2017. However, on that date a further notice of motion was filed seeking a further stay because the property was to be sold. Orders were made extending the stay until 30 November 2017 and at that time, a sale, purported to have been secured with a Ms Sarah Harwood, also appears to have fallen through.

In support of the application made today, I have read the affidavit that is relied upon by the defendants sworn by Mr Tortora on 15 January 2018. That affidavit gives a history of the attempts at sale of the property and is updated to include an asserted sale to a Mr Petkovski which is alleged to have been secured by exchange of contracts on 11 January 2018.

The precise circumstances of the purported exchange of contracts is a little unclear as the affidavit of Mr Tortora states the following:

The affidavit only attaches the front page of the purported contract for sale. It is asserted that a deposit of $2,412.50 cash was paid that night although the purchase price is asserted to be $965,000. No payment of that amount to a stakeholder such as an agent, or repaying of that amount to the plaintiff seems to have occurred in the ensuing couple of days.

The notice to vacate was dated 4 September 2017 and is effective at 9:30 am tomorrow, 17 January 2018.

I sought an explanation from Mr Tortoro as to why the application for the stay was only filed today. The explanation seems to be that the sale of the property is underway and therefore it is not unreasonable for orders to be sought at this extremely late juncture. This is an explanation I do not accept given that there is no certainty on the evidence that this current alleged purchase will proceed to completion.

Some evidence from the bar table was given today, in answer to an enquiry by me, that is to the effect that a loan organisation RAMS had a valuer attend the premises today. At best, this indicates that an approval for finance for a purchase of the premises has been sought. It does not indicate any certainty that this purchase will proceed and certainly does not indicate this purchase will proceed by the end of January.

As pointed out by Ms Rose on behalf of the plaintiff, there is nothing in the requirement to vacate the premises that prevents the sale proceeding as it is alleged it will. Her clients would be prepared to accede to an order that it not advertise the property for sale for a period of two weeks, or perhaps longer and even up to four weeks.

It appears to me that given the length of time since the judgment for possession and the various extensions that have been granted already, the defendants have had a number of opportunities to deal with the outstanding mortgage and have not as yet done so.

Accordingly I am not prepared to stay the writ of possession and I dismiss the notice of motion filed on 16 January 2018.

I order that the defendants pay the costs of the plaintiff.