Boutros v Nationwide Capital [2013] NSWCA 246

The guarantor sought to stay the Court’s order for vacant possession until her appeal against the writ of possession was determined. She had given a mortgage over her own property for her father’s loan. He had defaulted and the lender had sought an order for judicial sale in respect of their equitable mortgage, which had been granted. About 6 months after the order for judicial sale was granted, an order for writ of possession was made so that the sale could occur with vacant possession.

The lender advanced $965,000 to Boutros Constructions Pty Limited. The loan was guaranteed by a father and daughter. The guarantee contained a charging clause whereby the guarantors agreed to give a mortgage over any real estate they might own, now or in the future. The daughter owned a house and the lender placed a caveat over the title and sought judicial orders for power of sale.

The trial judge ordered judicial sale but did not make an order for possession. This required the lender to go back to court and ask for an order for possession. The daughter argued that final relief having been granted, it was not open to the court to now make an order for possession. 

The daughter approached the Court of Appeal for a stay. The Court of Appeal found there was no reasonable argument on the appeal because the order for vacant possession was ancillary to the primary order for judicial sale and the guarantor had not appealed the original order for judicial sale. The Court also found that the balance of convenience favoured the lender; although it noted that the issue of balance of convenience was irrelevant once it had decided there was no reasonable argument on the appeal. The Court of Appeal therefore refused to stay the order for possession.


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