AOC Finance Pty Ltd v Veritas Marketing Pty Ltd

By notice of motion dated 19 January 2026 and filed in Court this afternoon, 21 January 2026, the second and third defendants seek, relevantly, orders as follows:

Initially, it was sought that the motion be heard ex parte, but as events transpired, the plaintiff was able to get its solicitor here and I heard the matter at around 3:30pm this afternoon.

The principles guiding the exercise of the discretion in determining a notice of motion such as the present are well settled, and they were explained in helpful terms by Johnson J in GE Personal Finance Pty Ltd v Smith [2006] NSWSC 889.

His Honour referred to three categories of case where such a stay might be ordered. The present case falls within the third category. That is, it is a case where the defendants seek to sell the property on their own terms. It is not a case where the defendants seek to be, as his Honour put it, “let in” to defend the proceedings. That is, the defendants do not dispute the debt in question, which was the first category referred to by his Honour. The second category is where there is a realistic attempt to refinance the debt. There was some suggestion in the course of argument that there were attempts late last year to refinance, but the attempts to do so seem to have failed and were not pressed as an option this afternoon.

There was also mention, largely in the nature of explanation for the delay in bringing this application, of an attempt to obtain money from the sale of gold said to be in Kampala, Uganda. The amount of gold in question and the amount it would yield if sold would not come close to covering the total debt in question. There is also little hard evidence to support the proposition that such a sale is imminent. The second defendant told the Court:

The defendants also rely on what Johnson J described as “hardship grounds”. In particular, it is not disputed that the second defendant’s mother is very sick. She generally lives in a downstairs bedroom at the property and is currently an inpatient at the Royal Prince Alfred Hospital. She is expected to be discharged in the coming days, although precisely when is not clear, but the plaintiff does not dispute that she is sick and there is a brief letter from the Local Health District dated today which does establish that she was admitted to the hospital on 19 January 2026.

The second defendant and no doubt his wife, who is the third defendant, are concerned that there will be no appropriate accommodation when his mother is discharged if the writ is executed tomorrow. Further, the family itself, including their two dogs, will be without accommodation.

Where the property in question is valued at significantly more than the amount of the debt that the mortgage or mortgages are calculated to cover, relief from hardship grounds is far more likely to succeed. Johnson J put it as follows, at [22]:

His Honour also referred to the relevance of the level of indebtedness against the value of the property later in the judgment, and specifically at [24].

In the present case, the judgment of this Court by Pike J sitting in the Equity Division was delivered on 20 June 2025. Then on 8 October 2025, his Honour made the following orders:

Finally, on 26 November 2025, the writ of possession was issued to enforce the judgment debt. Going back a step or two, the debts that are to be secured by the forced sale of the property are, first, a registered mortgage to the ANZ bank covering what is now a debt of, in rough terms, $1,150,000. The present and relevant judgment debt owed to the plaintiff in these proceedings was $724,067.49, and with the addition of the generous interest rate stipulated by Pike J, is calculated to be, as of today, $816,202.83.

The second defendant, both in Court this afternoon but also in his affidavit, estimates the property will sell at approximately $1.8 million. As things unfolded this afternoon, there is some dispute between the parties as to precisely what the sale might yield. The plaintiff suggests that the sale may yield no more than $1.6 million, and indeed, even in the contract of sale annexed to the second defendant’s affidavit, there is an estimate of the current estimated selling price based on the agent’s opinion, and there is a range from $1.65 to $1.8 million.

Again, I quote Johnson J in GE Personal Finance Pty Ltd v Smith at [20]:

I note parenthetically that a submission to that general effect was made by Mr Jonoski this afternoon when he said that it is in the interests of both parties that such an orderly sale be made and he would be in the best position to attract the highest sale price, but his Honour, Johnson J, went on (at [20]):

Again, at [24], his Honour said:

I have significant sympathy for the second and third defendants. However, the reality is that delaying the sale further now, would simply be to delay the inevitable. Further, leaving the matter to the last few days before the writ was to be executed has placed the Court, and indeed the plaintiff, in a difficult position.

As Johnson J explained in GE Personal Finance Pty Ltd v Smith, this is a discretionary decision. I regret to say that in the circumstances prevailing here, where there is a real doubt that the sale price obtained (even if the second defendant arranges the sale with his preferred agent) will cover the entirety of the debt both to the ANZ bank, which will come out first, and then be subject to the judgments of Pike J last year.

In those circumstances, the discretion must be exercised against the defendants.

Accordingly, I decline to make the orders sought in the notice of motion and the motion is dismissed.