I recently appeared for the defendants in TNAL507 Pty Ltd v Saliba [2026] NSWSC 647 (alt), an application before Emmett J to maintain a stay of a writ of possession over a property in Glenorie. The application failed. The reasons contain observations worth distilling for practitioners advising borrowers in the Possession List of the Supreme Court of NSW.
The case is a reminder that a stay application is won or lost long before counsel rises to speak. Most of the work is done by the solicitor preparing the affidavit, the client maintaining a paper trail, and the financier producing terms that say what they mean.
The framework
Stays of writs of possession are addressed within the discretion described by Johnson J in GE Personal Finance Pty Ltd v Smith [2006] NSWSC 889 at [9]–[30]. His Honour identified four common categories: refinancing, sale of the property, an arguable defence, and hardship. The discretion is broad, but it is informed by the strength of the evidence in each category, the conduct of the defendant, and the prejudice to the plaintiff. The borrower bears the practical onus.
What happened
The defendants had been ordered, by consent on 21 May 2026, to pay $270,000 by 5pm the following day as the price of a stay. The payment was not made. When the matter was relisted on 26 May 2026, the basis for the stay had shifted to a proposed sale of the property to a third-party developer for $3.7 million. Emmett J discharged the stay. The refinance route was mathematically improbable on the lender’s own LVR cap; the sale route was conditional and inconsistent with the contract documentation; and the gaps between the affidavits and the underlying documents gave the court reason to doubt the reliability of the instructions on which the case was being run.
Four lessons
1. Keep paying what you can to the financier. A track record of payments, even partial, is the most powerful evidence of good faith. It demonstrates that the borrower is not simply riding out the litigation while interest accrues. Work out what your client can pay, keep the receipts, and put them before the court.
2. Document the sale. A contract front page is not a contract. A token deposit on a multi-million-dollar purchase invites the inference that the purchaser is not yet committed. Where a sale is relied on, the record needs to show a contract that has actually been exchanged, a deposit that means something (10% is the market signal for a reason), an identifiable purchaser whose finance position is provable, and a settlement date within the period of the stay sought. If the contract requires vacant possession but you intend to rely on a leaseback, that leaseback must be in evidence, not asserted from the bar table.
3. If you describe a purchase as arm’s length, demonstrate it. Establish how the purchaser was identified, the basis on which the price was set, and the steps each side is taking toward settlement. The purchaser must be both willing and able to settle. Willingness is shown by an unconditional contract; ability is shown by finance approval. If the purchaser’s own finance is contingent on a valuation that has yet to be done, the court will see the contingency for what it is.
4. “Unconditional finance” must really be unconditional. This was the central point in TNAL507. The letter of offer said the facility was unconditional and the lender was ready to fund. The affidavit disclosed that funds could not be released until security documentation over nominated motor vehicles had been completed. Those two propositions could not be reconciled, and the court expressed doubt about the reliability of instructions. Before holding out a letter of offer as “unconditional”, ask the lender directly: are there further documents that must be executed before funds release? If yes, the facility is conditional. Describe it accurately. The court will accept conditional finance for what it is; it will not forgive a misdescription.
Anthony Strik is a barrister at the New South Wales Bar. He has diverse practice which includes mortgagee enforcement and Possession List proceedings.