Holder v Zeiher (No. 2) [2014] NSWSC 963 (18 July 2014)

Last Updated: 25 July 2014

Supreme Court New South Wales

Case Title:	Holder v Zeiher (No. 2)
Medium Neutral Citation:	[2014] NSWSC 963
Hearing Date(s):	18 July 2014
Decision Date:	18 July 2014
Jurisdiction:	Common Law
Before:	Davies J
Decision:	1. Defendant's application to stay the execution of the writ of possession beyond 25 July 2014 is refused. 2. Defendant to pay the Plaintiff's costs of the proceedings.
Catchwords:	REAL PROPERTY - possession of land - stay of writ of possession - to enable negotiations for defendant to purchase property or apply to Family Court - further stay sought - defendant failed to act with expedition - further stay refused
Cases Cited:	Holder v Zeiher [2014] NSWSC 556
Category:	Interlocutory applications
Parties:	Mark Christopher Holder (Plaintiff) Felicity Zeiher (Defendant)
Representation
- Counsel:	Counsel: D Perrignon (Plaintiff) In person (Defendant)
- Solicitors:	Solicitors: Mills Oakley Lawyers (Plaintiff) In person (Defendant)
File Number(s):	2013/312016

JUDGMENT

1. I gave judgment for possession to the Plaintiff in this matter on 14 May 2014: Holder v Zeiher [2014] NSWSC 556. Because there was talk of negotiations between the parties for the Plaintiff to sell the property to the Defendant, and because of the Family Law proceedings instituted by the Defendant, I granted a stay until 25 July to enable the negotiations to proceed and also, if necessary, for the Defendant to make urgent application in the Family Court proceedings to give her the right to remain in the property pending the final determination of the Family Court proceedings.

2. I said that if she wished to make a further application for a stay, she was to notify my Associate by early in the week of 14 July, and the application was to be made by today. The Defendant first notified my Associate yesterday of her intention to make such an application. The evidence that she filed at my direction gave me no information about what had taken place during the last two months. However, I have today been provided by the Plaintiff with bulky affidavits which contain most but not all of the correspondence that passed between the parties.

3. The Defendant now moves on a motion, filed in court today, seeking an extension of the stay. As best that I can determine from the material that has been placed before me, the first time that the Defendant made any approach to the Plaintiff in relation to the purchase of the property since my judgment was an email of 28 May. That email is not before me but the Defendant read it out from her iPhone. It did not make an offer to purchase the property but merely indicated that the amount of the mortgage that was outstanding under the mortgage was "a given".

4. Although the Plaintiff had told me through his counsel on 14 May that it he wished to sell the property, on 4 June 2014 his solicitors wrote to the Defendant indicating that he wished to live in the property and not sell it. However, the letter went on to say that if the Defendant had a proposal to purchase the property, she should let them have full particulars of the proposal, including price, source of funds for purchase, and proposed time for completion of the purchase within seven days.

5. It seems that the Defendant was at that time overseas. A further letter was sent on 11 June 2014. It noted that, at the time the letter was written, no proposal had been received from the Defendant to purchase the property.

6. On 12 June, the Defendant sent an email saying that she had returned to Australia and she could address the issues at hand. There was mention in the email about a suggestion that the parties should split the costs of a valuation.

7. On 13 June, the Defendant sent an email explaining why she had been away out of the country. There was discussion about the return date for the Family Law proceedings. That was a reference to the fact that on 13 May the Defendant filed an application in the Family Law proceedings that she had already commenced, seeking exclusive occupancy of the property. The return date was stated on the front of the application as being 17 June 2014. The application was not served on the Plaintiff, despite the return date of 17 June, until about 12 June. The explanation that the Defendant has provided for that late service is entirely unsatisfactory.

8. In any event, in the 13 June email the Defendant sought to explain a phrase she had used in the earlier email which referred to "discharging the mortgage as a given." She said that the phrase meant an offer over $290,000 "will be made". The email went on:

"This is my start negotiation figure on which I cannot comment further until I have booked, executed and received the valuer's assessment. I will expect to have this completed within the next two weeks."

9. The next relevant email was 13 July, when the Defendant informed the Plaintiff's solicitor that she had offered a baseline offer of $290,000. She said she had the property professionally valued and she was waiting for the valuation results. The Defendant informed me that she had arranged for that valuation about two weeks before that email.

10. The Plaintiff's solicitors wrote on 15 July saying that the statement in her email to the effect that she had previously made an offer was incorrect, and they drew attention to the wording that had been used in the 13 June email, saying that an offer of $290,000 "will be made". They said that they presumed she wished to make an offer for $290,000 but pointed out that no terms on which the offer was made had been disclosed, including the amount of any deposit, and the time for completion.

11. That led to a further email from the Defendant of 15 July where she set out a number of problems in relation to the house, and then made two alternative offers, one based on the Plaintiff completing the works that needed being done and the other on an as is basis.

12. The Defendant was given a 2-month period so that these negotiations could, it was hoped, be advanced to completion or close to completion.

13. I am not satisfied that the Defendant has acted with any speed at all to institute the negotiations nor in fact to make an offer to purchase the property. She did not arrange a valuation until about the beginning of July (some 6 weeks after she was given the stay) and her first offer was made on 15 July (some 2 months after the stay). These delays are made worse because they have occurred after the gross delays on the Defendant's part that precede the judgment for possession. Some of those delays were set out in my judgment of 14 May 2014.

14. Amongst other matters, I noted that, despite the fact that the Defendant had been living in the property since the end of 2010, she had not paid any monies by way of rent or occupation fees at any time after January 2011. I noted there that she had a strong motive not to advance the application in the Family Court with any expedition for that reason. Events that have happened, or not happened, since 14 May have only confirmed that view.

15. There has been no attempt made to seek urgent relief in the Family Court, and the course of the negotiations have shown extreme dilatoriness on the part of the Defendant since 14 May. In those circumstances, I do not consider there is any justification for a further stay that I have granted beyond 25 July, and the application is refused.

16. The Defendant should pay the costs of the proceedings.

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