Esanda Finance Corporation Ltd v Somerset [1990] QSCFC 12

3 s 10 20 30 40 60 IN THE SUPREME COURT OF QUEENSLAND FULL COURT No. REVISED COPIES ISSUED Court Reporting Bureau Date.- 51/ 2/^^ 660 of 1988 BEFORE: / Mr. Justice McPherson^/ Mr. Justice de Jersey Mr. Justice Lee BRISBANE, 15 FEBRUARY 1990 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) 10 BETWEEN: ESANDA FINANCE CORPORATION LTD. (Plaintiff) -and- 20 Respondent ELSIE JOY SOMERSET - - - - --- • (Defendant) - Applicant JUDGMENT MR. JUSTICE McPHERSON : This is an application to stay i a judgment given in the Supreme Court for recovery of possession of property which consists of certain building units. The successful plaintiff in the action was Esanda Finance Corporation Ltd. which lent money to the defendant, Mrs. Somerset, for the purposes, I infer, of constructing the units. It appears that there is some defect in two of the units in the block of eight which, it is said, means that in ..i respect- •: that . i.t. is not aeces-sary- for me t.o - identify in detail the two units.in question do not.comply with the Building By-laws. That non-conformity with the by-laws has been corrected in the sense.that the relevant local authority has varied the requirement in respect of those two units. However, .the defendant considers that the resolution 30 40 50 60 • —Govt. Printer, Qld. -1- [1990] QSCFC 12 -- 1 of 3 -- 10 20 30 40 5U purporting to effect that variation is not itself valid. In the result, she has not paid any of the substantial sum of $667,000 and interest _ owing;-'to the -plaintiff/mortgagee' or has not done so for a considerable period of time. She has, as - she claims, a cross-claim or counter-claim against Esanda which, as one would expect, is alleged to over-top the claim of Esanda against her. The learned judge below assessed that claim or the loss that is said to result from the non-conformity with the by-laws at a sum of $1,000. Of course, his • assessment is •- '.-challenged'. When, all these matters are considered, however, it leads to the conclusion in my opinion that this court ought not to accede to the application that is made before us, ' which - is ■' that the enforcement of the judgment for recovery of possession should be stayed pending appeal. A "stay of that kind is, of course, a matter of discretion and not of right. The case is not one which, in my view, attracts any special remark that would require us to treat it as different from other cases of a similar kind. The defendant/applicant, if she is put out of possession pursuant to the writ, will, if she succeeds, be entitled to ' -be r - restored to possession of the units in question. No doubt some adjustment in the accounts between the mortgagee ,ancl .the mortgagor - may then he necessary,- but it is- a mattern-str. .ah aoujic -j -&n.. moneA - ■ on-i-y .and "#il 1-hc ; rectified on--- tlvs- fcakiq-ige 60 .o.£ chr accounts- arid --he :-p.aymen;to*Kthe---. bal-a-nce 'by- whbmever'«: irs-t T found to be the final debtor. The true reason for the application, when one studies it more closely, is that the defendant occupies a unit in the building together with her pensioner husband. The result —Govt. Printer, Qld. 10 20 30 40 50 60 -- 2 of 3 -- 1 10 20 30 40 60 of execution of the order in this case will be that they will be put out of their home. She is not well and it may • be inferred that it will not be easy for them to find another home. Much as matters of this kind may appeal to our sympathy our duty is clear. They are not matters to which we can give effect unless they are circumstances which require or permit us to ignore what would ordinarily be the result of a party's obtaining judgment in cases of this kind. No offer is made to provide any security to the plaintiff/mortgagee for the losses that it may incur through further delay resulting from the appeal in this case. I am told that it is the case that the /applicant/defendant is not in a position to make any such offer or provide any such security. Again she has our sympathy, but again for my part I think our duty is clear and that we must refuse this stay. I would propose that the application for stay be dismissed. MR. JUSTICE de JERSEY: I agree. MR. JUSTICE LEE: I agree. MR. JUSTICE McPHERSON: The order is that the motion is dismissed. Before you go, Mr. Battel, may I say that we value your appearance for the lady in the circumstances that have been disclosed by the evidence in this case. MR. SAVAGE: I ask for the costs of today. -o>-. ,MR,..JUSTICE,McPHERSON: ,</ — Yog ;ara- not reallyoin a position to .oppose .that? . .-.o-. . ■■ r oo ■ - ■; .. • y M. BATTEL s. '.Mo. ' . . •• y ' : or;. • _vj:oo- MR. JUSTICE McPHERSON: The order will be that the application is dismissed with costs. — Govt. Printer. Qld. 10 20 30 40 50 60 -- 3 of 3 --