Romiz Constructions v Byrnes [2010] NSWSC 26

In this case the lender obtained default judgment in April 2009, which the borrower filed a notice of motion to set aside in May 2009. The matter came before the court a number of times and in November 2009 an agreement was reached whereby the terms of the mortgage would be varied so the interest rate was less usurious, on condition a payment was to be made on the account and the balance owing paid out by a stipulated date. Although the payment was made, the mortgage was not paid out by the stipulated date. On 11 November 2009 the agreement was extended on the condition the mortgage would be discharged by 15 December 2009. That did not happen.
The borrower argued there was a binding agreement reached between the parties to compromise the amount due and sought a stay of the execution of a writ of possession so she could meet the agreement, even though she would be outside the timeframe. The lender argued the extended time for compliance had passed and they should be allowed to exercise their rights. Justice McDougall declined to stay the writ of possession noting:

The borrower’s affidavit makes it impossible to evaluate the reality of payment… I have the overwhelming impression that the defendant is seeking simply to draw out these proceedings, to her advantage and the disadvantage of the plaintiffs, by promises of payment that she cannot or will not make.

His Honour also noted that a dispute over the precise payout figure was no grounds for staying the writ, commenting:

There is said to be some dispute as to the precise amount owing. That can be resolved in the usual way: by the taking of accounts if the parties cannot otherwise agree.

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