Edmonds v Barrington Winstanley Group Pty Ltd

1. [1]

   FREE JA: This is an urgent application for a stay of the execution upon a judgment for possession and writ of possession. The writ of possession is due to be executed at 11.30am today, being Tuesday 18 November 2025. The application was listed for hearing before me at 9.30am, and only notified to the respondent late yesterday. The applicants, Sandra Edmonds and David Edmonds, are the registered proprietors and occupiers of a residence and rural property at 74 Dumaresq Road, Saumarez Ponds near Armidale. The applicants operate the property as a sheep farm. The property is stocked with over 1,500 superfine merino breeding sheep. There is a breeding program which needs to operate to certain standards in order to satisfy the requirements for accreditation under what are called the ClipCare and Reda Wool enterprises.

2. [2]

   The prospect of execution of judgment for possession has been in place since 6 August 2025, when Justice Faulkner gave judgment in favour of the respondent for possession of the property. The respondent was enforcing its rights as a mortgagee pursuant to a mortgage granted on 30 August 2024 and an unpaid debt of just over $650,000. Judgment was issued after Justice Faulkner struck out the defence that was then being relied upon by the applicants in their capacity as defendants to the proceedings at first instance. Justice Faulkner was satisfied that the applicants had no reasonable defence.

3. [3]

   Although this is the first application for a stay in the Court of Appeal, this is the latest in a number of hearings concerning applications for a stay of execution. The most recent hearing in the Common Law Division was heard and dismissed by Justice Walton on 7 November 2025.

4. [4]

   In a judgment delivered on that day, his Honour reproduced at paragraph 4 a helpful history of proceedings which had been compiled by Justice Adams in an earlier unreported judgment on 21 October 2025:

5. [5]

   As a number of judges who have dealt with this matter have already observed, a highly curious feature is that the solicitor on the record for the applicants is Mr Smits of Murray Laws Pty Ltd. Murray Laws Pty Ltd was, itself, a party to the proceedings below and is the third applicant on the application for leave to appeal, at least as currently framed. It is also apparently in possession of the property pursuant to a security previously granted to it, although it has leased the property to the applicants. It is owed a large amount of money by the applicants secured against the property. The respondent’s security as mortgagee, however, takes precedence over the security interests of Murray Laws Pty Ltd.

6. [6]

   When the matter came before Justice Walton on 7 November 2025, a temporary stay was in place. One purpose of that temporary stay had been to enable the applicants to regularise the position in terms of an appeal from the judgment of Justice Faulkner on the basis that, in order to justify the continuation of the stay in support of an appeal, the applicants needed to demonstrate that an appeal was on foot and that arguable grounds of appeal had been advanced. On 7 November 2025, the applicants were represented by an agent, Mr Choy, rather than their usual solicitor or agent. Mr Choy did not advise the Court that an application for leave to appeal had been filed and the matter proceeded before Walton J on the basis that no application for leave to appeal had been filed and the time for bringing an appeal had passed. His Honour declined to grant any stay.

7. [7]

   The applicants submit that the true position was that an application for leave to appeal had, in fact, been filed on 6 November 2025 together with the white book, draft notice of appeal and summary of argument. They say there was a miscommunication which meant that the legal representative who appeared before Walton J was unaware of this, or at least failed to bring it to his Honour’s attention. Whether or not there was, in fact, an effective filing of material in the Court of Appeal on 6 November 2025 is unclear.

8. [8]

   A white folder was subsequently filed on 17 November 2025 containing a draft notice of appeal and summary of argument, although it appeared at the hearing this morning that that has yet to be served on the respondent. As the respondent submits, if it is the case that the filing on 17 November 2025 was the first filing, it would follow that the applicants must now also seek an extension of time. The present application was notified to the Court late on 16 November 2025. The applicants have submitted that the delay in bringing the present application after what had occurred before Walton J on 7 November 2025 is explained by a breakdown in communication between the applicant’s solicitor and his Sydney agents.

Prejudice to the applicants

1. [9]

   I will set out now the prejudice that would be suffered by the applicants if execution of the writ of possession were to proceed today at 11.30 am. The applicants contend that if execution of the writ of possession does proceed today, they will suffer immediate, permanent and irreparable harm in the following ways. First, the breeding program which has operated for 30 years will be destroyed. Second, some 1,500 superfine Merino breeding sheep will be lost, including ewes that are lambing, noting that we are in the middle of the lambing season. Third, they will lose the ClipCare Quality Assurance Accreditation and the Reda Italian Contract Accreditation. Those are said to be tied to the land and the enterprise which is operated from the land. Fourth, the applicants will lose the February premium wool sale window, with associated loss of income and damage to commercial relationships. Fifth, the loss of planted and fertilised fodder crops which are required to finish lambs that are supplied to the major supermarket chains.

2. [10]

   An additional consideration affecting occupation of the property is that there are significant cultural heritage items located on it, and also significant Aboriginal cultural artefacts.

3. [11]

   The applicants say that because of the adverse impacts of execution of the writ of possession, if a stay is not granted, their appeal will be rendered nugatory. They also submit that the loss would not be relevantly ameliorated by the respondents selling the sheep if they take occupation. The applicant’s primary position initially was that there should be a stay pending determination of the appeal. The alternative position is that there should be a temporary stay to allow for an orderly departure from the property with their flock, minimising the disruption to their enterprise.

4. [12]

   The respondent, who was represented at the hearing before me by Mr Pesman of senior counsel, and subsequently by his instructing solicitor, Mr Leonard, after Mr Pesman was required to attend his scheduled hearing, properly accepts that the applicants will suffer prejudice if the writ of possession is executed, although the respondent does note that the applicants have apparently failed to take any steps since August 2025 to address the need to exit the property in an orderly way. The respondent has indicated that it is prepared to facilitate an orderly exit of the property by the applicants after it takes possession of the land.

5. [13]

   However, one complication with the current balancing exercise, and a matter which weighs on it, in my opinion, quite considerably, is that no arrangements have, in fact, been put in place, and there is no certainty about precisely how an orderly exit from the property would proceed if possession was to transfer to the respondent today. That is a significant consideration, particularly from an animal welfare perspective, given the large number of animals on the property and the complications involved with handling them and/or moving them elsewhere.

Prejudice to the respondent

1. [14]

   Turning then to consider what prejudice would be suffered by the respondent if execution of the writ of possession is delayed, the applicants, in pre-empting any complaint of that kind, argue that a delay in execution of the writ of possession will not carry any risk of the respondent being unable to recover the amount owed to it from any later sale of the property. The judgment in favour of the respondents relates to a debt in the principle of $650,000. The applicants contend the property is worth at least $3 million. While there is another mortgagee, or mortgagees, and other judgment creditors, the applicants suggest that all claims could be satisfied and money would be left over if it were necessary to sell the property.

2. [15]

   The respondent submits, on the other hand, that it may suffer prejudice if it transpires that it does not have a valid mortgage over the property, in which case it will become an unsecured creditor. In that context, it becomes significant that the applicants appear to have a substantial and growing debt to Murray Laws, which may in time consume enough of the equity in the property to leave the respondent at jeopardy of not recovering the money owed to it. At least that is the concern that the respondent has. That concern has been exacerbated by uncertainty about the amount presently owed by Murray Laws Pty Ltd in circumstances where it has previously been disclosed that Murray Laws Pty Ltd is entitled to compound interest of 4% per month.

3. [16]

   To at least partially address that concern, I have made a direction today that the applicants answer a notice to produce which had previously been issued by the respondent to try to clarify that matter. I pointed out to Mr Pesman in the course of argument that any prejudice suffered by the respondent in the event that it is found to be an unsecured creditor would only arise if it was found that it did not have a proper entitlement to possession under its mortgage. He submitted in response that the concern about that accumulating debt has been exacerbated by the applicant’s delay in addressing these matters, and that is a matter to which I give some weight.

An offer to pay money into court

1. [17]

   A critical development over the course of last night and this morning has been an offer by the applicants to pay money into Court in satisfaction of the respondent’s claim. I will return to that shortly as it is, in my mind, the critical consideration on the present application. Another consideration bearing on the application which the respondent raises is that the applicants have generally been tardy and disorganised with their various applications, which should tell against them in the Court’s exercise of discretion. While the criticism is well-founded factually, in the context of this matter, I do not consider it to be a particularly weighty consideration.

Arguable grounds of appeal

1. [18]

   In an application of this kind, it is appropriate to consider whether arguable grounds of appeal have been identified. Counsel for the applicants, Mr Burchett, frankly concedes that the appeal papers are in a deficient state, and the application for leave to appeal, draft notice of appeal and summary of argument are poorly drafted. The applicants apparently took primary carriage of the drafting themselves, and that is also said to explain some of the difficulties with the pleadings and the affidavits in the proceedings before Faulkner J. Counsel for the applicants concedes in that regard that large parts of the defence were properly struck out by his Honour.

2. [19]

   Relatedly, counsel for the applicants does not seek to rely on the contents of the draft notice of appeal or summary of argument to demonstrate that there is an arguable ground of appeal. He does however submit that there was, on the material before Faulkner J, the kernel of an arguable defence, and there is an associated arguable point of law going to the failure of the trial judge to engage with that defence.

3. [20]

   The defence in question which is sought to be advanced by the applicants is that the mortgage was submitted for registration by the respondent when it knew that the applicants were bankrupt that day, and therefore incapable of authorising its registration. It submitted that the subsequent setting aside of the sequestration order did not cure the resulting invalidity of the registration of the mortgage.

4. [21]

   In response to that argument, the respondent says that it is factually baseless. It says that the mortgage was executed at a time when the applicants were not bankrupt, and that there was no attempt to register the mortgage while the applicants were bankrupt, as registration occurred much later. The respondent also says that the point, even if it is a good one, would not amount to fraud, and would not provide a basis to defeat registered title. The respondent also raises an issue about whether the argument in question and the evidence that would be relevant to the argument were properly raised before Faulkner J, and therefore could legitimately be raised on the appeal.

5. [22]

   In the circumstances that have transpired, particularly because of the undertaking given by the applicants, I do not consider it necessary to resolve the question of whether the suggested appeal ground is arguable or strongly arguable. It has, it seems, significant weaknesses as observed by the respondent, but it is unnecessary to say more about it.

Determination

1. [23]

   The decisive consideration to my mind in the present matter is an undertaking which has been given by counsel on behalf of the applicants, if a temporary stay is granted, to pay money into Court within 21 days in the amount of $850,000 to abide by any final determination of the Court or otherwise to be paid out in accordance with the written agreement of the parties.

2. [24]

   The initial proposal raised by the applicants was for an undertaking of that kind, but in the amount of $650,000.

3. [25]

   The respondent in response to that suggestion submitted that the amount owing to it by the applicants, having regard to interest and also costs orders, is well in excess of $650,000. The precise amount is unknown, which is not a criticism of the respondent given the urgency of the matter and the late raising of this issue of the form of undertaking. However, it was estimated from the bar table that the amount actually owing by the applicants to the respondent, as things stand, taking into account interest and costs, would exceed $650,000 by some hundreds of thousands of dollars. Instructions were subsequently obtained, and Mr Burchett advised the Court that the undertaking for payment into court was proffered in the amount of $850,000 in the event that the Court was prepared to grant a stay for 21 days.

4. [26]

   With that revision to the amount of the undertaking, I am satisfied that the respondent will be given a very considerable measure of protection. It will be denied the execution of the writ of possession which was otherwise scheduled to proceed at 11.30 am today, but instead it will have significant protection of a different kind. There are two possibilities. One is that the applicants, in accordance with their undertaking, now proceed to pay $850,000 into Court, which will provide the respondent with complete, or at the very least, almost complete security in respect of the amounts owing to it by the applicants.

5. [27]

   Alternatively, if the applicants fail to pay that money into Court within 21 days in accordance with their undertaking, then the respondent will be entitled, firstly, to take the benefit of any money that has been paid into Court in a lesser amount, and to take possession in accordance with the delivery up by the applicants of the property to the respondent immediately after that 21 days. There will, in those circumstances, if the amount is not paid into court, as things presently stand, not appear to be any sensible basis on which the applicants could then seek a further stay or complain about the need to vacate the property and for the respondent to take possession of it.

6. [28]

   For those reasons, the Court will order that on the undertaking given by senior counsel on behalf of the applicants, which has been recorded in the transcript, there will be a stay of execution of the writ of possession and the judgment of possession for 22 days from today. The stay will therefore extend to 10 December 2025, when the motion will be listed before the Registrar for directions.

7. [29]

   The undertaking given by the applicant is:

8. [30]

   The orders of the Court are:

   1. (1)

      The applicants, within 7 days, are to respond to, and to the extent appropriate produce in accordance with, the notice to produce previously served seeking documents relating to the liability of the applicants to Murray Laws Pty Ltd.

   2. (2)

      Upon the undertaking given by the applicants, stay of execution of writ of possession and judgment of possession for 22 days from today 18 November 2025.

   3. (3)

      Costs to date of the notice of motion filed 17 November 2025 will be costs in the appeal.

   4. (4)

      Material filed on 17 November 2025 is required to be filed and served on the respondents forthwith.

   5. (5)

      The notice of motion filed on 17 November 2025 is stood over for directions before the Registrar on 10 December 2025.