Supreme Court New South Wales

• Medium Neutral Citation: Pace v Calabro Real Estate Pty Ltd [2014] NSWSC 1166
• Hearing dates: 14 August 2014
• Decision date: 14 August 2014
• Before: McCallum J

Decision

Writ of possession stayed up to and including 25 August 2014.

• Catchwords: POSSESSION - stay application - late completion of contract for sale of land - procedural fairness
• Category: Interlocutory applications
• Parties: Victor Pace (first plaintiff); Catherine Pace (second plaintiff); Calabro Real Estate Pty Ltd (defendant)
• Representation: Counsel: Mr J Loofs (plaintiffs); F Cutry (solicitor for plaintiffs, via telephone); P Barham (defendant); Solicitors: Cutri & Associates (plaintiffs); VL Macri Lawyers (defendant)
• File Number(s): 2014/122076
• Publication restriction: None

Judgment - ex tempore

1 HER HONOUR: These are proceedings for possession of land commenced by Mr and Mrs Victor and Catherine Pace against Calabro Real Estate Pty Limited. The proceedings were commenced by statement of claim filed 23 April 2014.

2 The land the subject of the claim is presently registered in the name of Mr and Mrs Pace and is the subject of a contract for sale entered into as long ago as November 2011. The stalling of the completion of the contract for sale prompted Mr and Mrs Pace to commence these proceedings seeking possession. The need for an order for possession arises from the fact that the defendant is in occupation of the premises as licencee.

3 At 8.00am this morning an application came before me to stay the scheduled execution of the writ, which was then to occur at 10.30am this morning. I granted the stay. These are my reasons for making that order.

4 When the application first came before me the defendant was represented by Mr Barham of counsel. At the outset of the application the court contacted the solicitor for the plaintiffs, who is in Fairfield, by telephone. During the course of the hearing of the application a barrister briefed by that solicitor, Mr Loofs, arrived and continued the argument.

5 In summary the dispute between the parties relates to the tardy completion of the contract for sale of the land to which I have referred. The contract was due to be settled in April 2012. At the time the contract for sale was entered into, Mr and Mrs Pace were themselves in default of a loan agreement secured by a mortgage over the property and proceedings against them for possession of the land had been commenced by the mortgagee, St George Bank.

6 The terms of the agreement for sale with the defendant in the present action enabled Mr and Mrs Pace to make sufficient payment to St George Bank to forestall the execution of an order for possession. In particular, Mr and Mrs Pace entered into a licence agreement with the defendant in the current proceedings pursuant to which regular payments were made by the defendant either directly to St George or to Mr and Mrs Pace to enable them to make payment to St George (I do not think the evidence before me establishes which).

7 Further, the defendant in the present action consented to the release of a ten per cent deposit, the sale price being $2.6 million and the deposit accordingly being $260,000, for payment to St George against the liabilities of Mr and Mrs Pace to St George.

8 The affidavit relied upon in support of the stay application also demonstrates at least a prima facie case for an argument that the defendant to the present action has expended in excess of $1 million in improving the property while it has been the licensee. That might have established a basis for an estoppel argument but ultimately it was not necessary for me to determine that issue, for the reasons that follow.

9 The evidence establishes that, prior to the entry into the agreement for sale, St George sought Mr and Mrs Pace's agreement to have the $260,000 deposit released in favour of St George, a regime of monthly payments which were to be made by the defendant in the present action by separate agreement and, most importantly, to consent to judgment for possession.

10 The correspondence in evidence before me included a letter from St George's solicitor to Mr and Mrs Pace's solicitor to that effect, enclosing "a consent order for execution and return". Mr Macri, the solicitor for Mr and Mrs Pace who, as I have mentioned, was before the court by telephone this morning, was not certain as to the fate of that order. However, my associate consulted the court's electronic recording system and was able to ascertain that there is indeed an order for possession recorded by Justicelink, that is, St George Bank has obtained an order for possession of the property against Mr and Mrs Pace.

11 In those circumstances, I formed the view that there ought to be an opportunity for St George and arguably also Mr and Mrs Pace to address the court as to the potential legal or at least logical conflict between there being an order for possession in favour of St George against Mr and Mrs Pace and a later writ of possession in favour of Mr and Mrs Pace against the licensee, Calabro Real Estate Pty Limited. Without having had any opportunity to consult authority, I formed the preliminary view that it is not possible for two competing orders for possession to co-exist in respect of the same property.

12 For that reason, that is, in order to afford procedural fairness to St George in what appeared to be a potential legal act which could be to its detriment, I considered it appropriate to grant the stay. I stood the proceedings over for one week before the Duty Judge, directing the plaintiffs to notify St George of the orders today and the adjourned date.

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Decision last updated: 10 November 2014