Perpetual Limited v Narayan [2013] NSWSC 39

The court granted a stay even though the court found that the top value of the property would be insufficient to discharge the debt and therefore delay would increase that shortfall and the only source of funds for repaying the debt was the sale of the family house.

Practice Note SC CL 6 makes clear that the usual circumstances which support a stay of execution of a writ of possession are:

(1) that the loan is to be refinanced;
(2) that the property is to be sold;
(3) that the proceedings are to be defended; or
(4) hardship.

The court noted that only hardship grounds applied and granted the mortgagees a stay for one month, because the sick husband and grandmother, and young daughter would otherwise suffer “very severe hardship” and one month would enable the mortgagees to organise their affairs.

In the past hardship has only succeeded when the lender was not facing a shortfall. It seems now that if one citizen is facing hardship another citizens property can be confiscated. This is very similar to the jurisprudence practiced in the former Soviet Union.

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