NAB v Damelian [2013] NSWSC 792

The borrower was seeking to delay his eviction. He accepted he must vacate the premises and had made arrangements to lease a property at Whale Beach, however it was not available until six weeks after the eviction date due to renovations. The borrower alleged he did not have any alternative accommodation.

The judge stated that there were 4 grounds on which a writ of possession could be stayed: where proceedings are to be defended; the loan is to be refinanced; the subject property is to be sold; or on grounds of hardship. However, where vacation of the premises is inevitable there should be no reasonable expectation of an extended stay being granted.

Additionally, six weeks delay would add at least $74,000 onto the debt owed by the bank, and it was already agreed by both sides that the sale of the security property would not satisfy the bank’s debt as it currently stood.

The judge decided that even though the borrower had “set his heart…on a smooth transition from his current attractive McMahon’s Point property, to another property in pleasant comparable surroundings” but that that was not something that should delay the bank in executing on the writ of possession. The application for a stay was declined.

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