Sympathy only gets you so far – hardship grounds are not necessarily sufficient to enable stay application

It is clear from the recent approach of the Court that it will not determine a stay application on the present position of the parties alone. That is, the Court will go beyond the usual considerations (imminent discharge or refinance, shortfall, hardship, servicing etc) and consider the conduct of the parties and history of stay application.. 

In Bendigo & Adelaide Bank Ltd v Karamihos [2014] NSWSC 1045 the New South Wales Court of Appeal refused to grant a stay application. The borrowers submitted that they were elderly (early 90s) and in poor health, and any eviction would cause them stress and anxiety, thereby further deteriorating their health. It was also submitted that the Bank would not be prejudiced because all the loan arrears had been paid. 

The borrowers sought a stay (on the morning the writ for possession was due to be executed) for six to eight weeks to enable their daughter to obtain finance to buy the property and pay out the loan to the bank. 

Justice Garling was not persuaded to exercise the Courts discretion to stay the execution of the writ for possession despite expressing his “considerable sympathy for the applicants”.

The Court had regard to the length of proceedings, which had been on foot since 2009. The Court held that, “at a time well past the eleventh hour”, an urgent application was made upon the same basis as the Applicants previous stay application. Justice Garling stated:

it is obvious that they have taken considerable steps and efforts to avoid, by delaying, the consequences of the orders of the Court of Appeal, including the execution of the Writ of Possession. 

Accordingly, the Court refused to grant the orders sought. 

Similarly, in Australia & New Zealand Banking Group Limited v Soliman [2014] NSWSC 1008 on 24 July 2014, Justice Hamill noted that “the application cannot be considered in isolation”. In this case, a similar application was made in May 2014 and a stay of execution was granted. A further stay sought later that month was rejected by the Court, which noted that the fact that the borrower sought the stay “on the eve of the eviction” was a matter to be taken into account. Even though the Judge was sympathetic to the hardship the borrowers would suffer, having to relocate five children, one of them an infant, the Court was not persuaded to grant the stay. 

Accordingly, even if borrowers personal circumstances evoke the Courts sympathy this is not necessarily grounds for granting a stay. The Court will consider the conduct of the parties, procedural history, and whether there is exceptional circumstances before an order will be made.

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