Hardship alone cannot justify delaying eviction when the mortgagee is entitled to possession: court
The NSW Supreme Court has denied an urgent application by a homeowner seeking to delay eviction from their property following a protracted legal process stemming from mortgage default.
The applicant, who faced eviction under a writ of possession, requested a stay of execution to facilitate a medical procedure and complete the sale of the property.
The plaintiff, the mortgagee of the property, initiated legal action in April 2024 after the applicant defaulted on their mortgage. The court granted a default judgment in June 2024, followed by a writ of possession in August 2024. Despite several temporary stays granted during subsequent months, the applicant’s motions for further relief lapsed due to non-attendance or failure to meet procedural requirements.
The applicant contacted the court the evening before the scheduled eviction, prompting an urgent hearing the next morning. The applicant explained his circumstances, including medical challenges, the need to oversee a private treaty sale of the property, and the absence of alternative accommodation.
The applicant argued that staying in the property would allow him to address minor repairs and expedite the sale process. However, the court noted that the applicant had only recently entered into a sales contract and expressed doubts about the applicant’s commitment to completing the transaction promptly.
The Supreme Court acknowledged the applicant’s difficulties, including eviction's logistical and emotional toll. However, the court emphasised the extended timeline of the case, noting the lack of proactive steps taken to resolve the matter earlier. The court stated that further delays would increase legal expenses and diminish the equity in the property.
The court referenced principles established in GE Personal Finance Pty Limited v Smith [2006] NSWSC 889, which indicate that hardship alone does not justify an extended stay if the plaintiff is otherwise entitled to possession. It found the applicant’s explanation for inaction inadequate and declined to intervene further.
Ultimately, the court dismissed the application for a stay, allowing the eviction process to proceed as scheduled.