37 York Rd Pty Ltd v Lord and Stone

[2025] NSWSC 352

Supreme Court

New South Wales

Medium Neutral Citation:

37 York Rd Pty Ltd v Lord and Stone [2025] NSWSC 352

Hearing dates:

7 April 2025

Date of orders:

7 April 2025

Decision date:

07 April 2025

Jurisdiction:

Equity - Duty List

Before:

Kunc J

Decision:

Application to vary or set aside consent order dismissed with costs

Catchwords:

JUDGMENTS AND ORDERS — Amending, varying and setting aside — Consent orders — Where based on contract between the parties

Cases Cited:

Brennan v Kinjella (1993) 6 BPR 13,168

Cherry v Steele-Park (2017) 96 NSWLR 548

Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337

Lachlan v HP Mercantile Pty Ltd (2015) 89 NSWLR 198; [2015] NSWCA 130

Secured Income Real Estate (Australia) Ltd v St Martin Investments Pty Ltd (1979) 144 CLR 596; [1979] HCA 51

Walker Group Constructions Pty Ltd v Tzaneros Investments Pty Ltd (2017) 94 NSWLR 108; [2017] NSWCA 27

Texts Cited:

Lewison and Hughes, The Interpretation of Contracts in Australia (2nd edn, Lawbook Co, 2025)

Category:

Consequential orders

Parties:

37 York Rd Pty Ltd (Plaintiff)
Brett Lord and Richard Stone in their capacity as joint and several receivers and managers of Procent Pty Ltd ACN 647 715 955 as trustee for Captain Cook Trust (Receivers and Managers Appointed) (First Defendants)
Procent Pty Ltd (Second Defendant)
Kurvest Pty Ltd (Third Defendant)
Otsi Stojanovski (Fourth Defendant)

Representation:

Counsel: B Burke/A Berriman (Plaintiff)
ML Rose (First Defendant)
J Nolan (Second Defendant)
P Knowles SC/P Sharp (Third and Fourth Defendants)

Solicitors: Assured Legal (Plaintiff)
Corrs Chambers Westgarth (First Defendant)
Herman Legal (Second Defendant)
Sage Solicitors (Third and Fourth Defendants)

File Number(s):

2025/40396

Publication restriction:

Nil

Ex tempore JUDGMENT (Revised)

Summary

1. The question before the Court is whether the plaintiff, 37 York Rd Pty Ltd, for whom Mr B Burke of Counsel appears with Mr A Berriman of Counsel, should be held to an agreement which was carried into execution by the parties consenting to these orders made by Meek J on 21 March 2025, including Order 7 (emphasis added):

“Notes that:

1    There is a proposal by the Plaintiff and the Second Defendant to discharge the debt secured by the registered mortgage in favour of Judo Bank Pty Ltd registered on the title of the land contained in Certificate of Title Folio Identifier Lot X in Deposited Plan 2XXXXX and known as XXXX Captain Cook Drive, Kurnell NSW (Kurnell Property), under which the First Defendants are appointed, on 31 March 2025 (Refinance Proposal).

2    The Plaintiff undertakes not to complete the purchase of the Kurnell Property from the Second Defendant whilst the restraint against the Second Defendant under Supreme Court of NSW proceeding no. 2023/463906 is in effect.

The Court orders that:

3    Mr Otsi Stojanovski be joined as the fourth defendant to the proceeding.

4    The plaintiff file an Amended Summons to give effect to the joinder of the fourth defendant, to be filed by 4pm on 28 March 2025.

5    The matter be stood over before the Duty Judge in Equity at 10am on 7 April 2025.

6    Upon the plaintiff by its counsel giving to the Court the usual undertaking as to damages, and without admissions by any party, the operation of Caveat AUXXXXX (Caveat) lodged on the title of the Kurnell Property be extended until 5pm on 7 April 2025.

7    In the event the Refinance Proposal does not complete and the debt owing to Judo Bank Pty Ltd is not fully discharged by 7 April 2025, then:

(a) in accordance with section 74M of the Real Property Act 1900 (NSW) (Act), the Plaintiff is to withdraw the Caveat by no later than 8 April 2025.

(b)    in accordance with section 74O of the Act, the Plaintiff will not, from 7 April 2025, lodge a further caveat on the title of the Kurnell Property claiming an equitable interest in the whole of the land arising from the executed Contract of Sale of the Land in respect of the Kurnell Property dated 26 September 2024.

8 There be liberty reserved to the third and fourth defendants to issue a lapsing notice in respect of the caveat with registered dealing number AUXXXXX or making an application under s 74MA of the Act.

9    The Plaintiff pay the Third Defendant’s costs of today thrown away by reason of the adjournment.

10    Costs of the application before the Court today otherwise be reserved.

11    These orders be entered forthwith.”

2. By the caveat referred to in the orders, 37 York Rd claims an equitable interest in the Kurnell property as purchaser pursuant to a contract entered into on 26 September 2024 with the second defendant, Procent Pty Ltd ACN 647 715 955 as Trustee for the Captain Cook Drive Trust, for whom Mr J Nolan of Counsel appeared. Mr Nolan did not take an active role in today's debate because Procent is under the receivership of the first defendants, Brett Lord and Richard Stone in their capacity as joint and several receivers and managers of Procent Pty Ltd ACN 647 715 955 as trustee for Captain Cook Trust (Receivers and Managers Appointed) (the Receivers) for whom Mr M L Rose of Counsel appeared, the Receivers having been appointed by Judo Bank Pty Ltd.

3. There is another larger dispute in this Court referred to in the orders (proceedings 2023/463906), which includes claims over the property by the third defendant, Kurvest Pty Ltd ACN 605 571 631 (Receivers and Managers Appointed), and fourth defendant, Mr Otsi Stojanovski. Mr Stojanovski was made a party to these proceedings at the time the orders were made as part of the agreement.

4. The third and fourth defendants were represented by Mr P Knowles of Senior Counsel with Mr P Sharp of Counsel. Because Mr Rose adopted Mr Knowles SC's submissions, I shall refer to the latter as the "defendants’ submissions".

5. For the reasons which follow, but which fundamentally turn on the Court's view that the meaning of Order 7 is clear in its terms, the Court has determined that it will not accede to 37 York Rd's application that Order 7 should be set aside or varied so as to enable it to apply for a further seven day extension of the caveat to enable the Refinance Proposal referred to in the orders to occur.

Facts

6. The orders were the outcome of an agreement entered into by email negotiations between the parties through their lawyers. Those negotiations were undertaken with a view to postponing 37 York Rd's application to extend the caveat that was to be heard before Meek J in the Duty List on 21 March 2025. It is necessary to set out that correspondence and what has passed since then in some detail.

7. On 19 March 2025 at 7:40pm, 37 York Rd’s solicitor emailed the lawyers for the other parties including:

“We understand it is proposed that the discharge of Judo Bank's mortgage take place on 31 March 2025 (Judo Bank Discharge).

It would be a waste of the Court's time and each parties' legal fees to entertain an application in relation to a lapsing notice where the party who lodged the lapsing notice may no longer be a party within 2 weeks.

In the circumstances, it seems to us that the application before the Court this Friday, 21 March 2025 should be stood over to allow the Judo Bank Discharge to proceed.

Attached are short minutes of order standing the matter over to 7 April 2025. Kindly let us know whether your respective clients consent to the proposed short minutes of order.

If your clients' intend to proceed this Friday, 21 March 2025, we are instructed to ask the Court that:

•   no further order be made that would have the effect of altering order 2 of the orders made by Lindsay J on 4 February 2025; or

•   if the Court is minded to make any further orders affecting order 2 of the orders made by Lindsay J on 4 February 2025, those orders include an order for the continuation of the operation of the caveat until at least 7 April 2025,

to allow the Judo Bank Discharge to proceed.”

8. On 20 March 2025 at 3:00pm, the Receivers’ solicitor (who also acted for Judo Bank) replied, copied to the other parties’ lawyers:

“While our clients are prepared to consent to the matter being stood over to a later date, they are not prepared to do so unless an agreement is reached for the withdrawal or lapsing of the caveat on or around 7 April 2025 following the discharge of the mortgage.

Accordingly, we attach short minutes of order to that effect.

We ask that you please seek instructions from your clients as soon as possible.

The Receivers reserve all of their rights to continue with tomorrow's hearing in the event that an agreement cannot be reached between the parties.”

9. On 20 March 2025 at 5:43pm, the Receivers’ solicitor wrote to the parties’ lawyers including (emphasis added):

“Further to the various emails and discussions this afternoon, please see attached an updated form of order that our clients are prepared to agree to.

Our clients willingness to consent to the extension of time to 7 April 2025 to allow time for a refinance to be finalised is on the basis that the refinance actually occur by that date. In the event that the refinance does not occur by that date, our clients require a self-executing order that the caveat be removed by no later than the commercial deadline which is proposed.

Please see attached updated orders reflecting that position. If that is not agreeable, then the hearing will proceed tomorrow.”

10. The proposed Short Minutes of Order attached to that email included:

“3 In the event the Refinance Proposal does not complete and the debt owing to Judo Bank Pty Ltd is not fully discharged by 7 April 2025, then:

(a) in accordance with section 74M of the Real Property Act 1900 (NSW) (Act), the Plaintiff is to withdraw the Caveat by no later than 8 April 2025.

(b)   In accordance with section 74O of the Act, the Plaintiff will not from 7 April 2025, lodge a further caveat on the title of the Kurnell Property claiming an equitable interest in the whole of the land arising from an executed Contract of Sale of the Land in respect of the Kurnell Property dated 26 September 2024.”

11. On 20 March 2025 at 9:25pm, 37 York Rd’s solicitor responded, copying the other parties’ lawyers (emphasis added):

“Attached are marked-up proposed orders.

The self-executing orders should not become operative if the refinance does not proceed because of any act, omission or delay of or caused by Judo Bank Pty Ltd, the Receivers or Kurvest Pty Ltd.”

12. That email attached draft Short Minutes of Order which included (emphasis added):

“3 In the event the Refinance Proposal does not complete and the debt owing to Judo Bank Pty Ltd is not fully discharged by 7 April 2025 other than because of any act, omission or delay, of or caused by Judo Bank Pty Ltd, the First Defendants and/or the Third Defendant, then:

(a) in accordance with section 74M of the Real Property Act 1900 (NSW) (Act), the Plaintiff is to withdraw the Caveat by no later than 8 April 2025.

(b)   In accordance with section 74O of the Act, the Plaintiff will not from 7 April 2025, lodge a further caveat on the title of the Kurnell Property claiming an equitable interest in the whole of the land arising from an executed Contract of Sale of the Land in respect of the Kurnell Property dated 26 September 2024.”

13. On 20 March 2025 at 10:04pm, the Receivers’ solicitor replied, copying the other parties’ lawyers:

“Our clients are not agreeable to the proposed amendments. That form of order does not provide the necessary certainty.

They repeat that they are willing to enter into orders in accordance with the attached. If the orders are made, the receivers will work diligently with the relevant parties to assist in their efforts to complete a refinance.

Failing those orders being agreeable, the hearing will proceed tomorrow.

Please let us know your clients' respective positions.”

14. On 21 March 2025 at 7:10am, 37 York Rd’s solicitor responded, copying the other parties’ lawyers:

“Can you please articulate the basis on which your clients say our client should be required to withdraw its caveat if the refinance does not proceed by 7 April 2025 because of an act, omission or delay caused by Judo Bank Pty Ltd, your clients or Kurvest Pty Ltd.

Our client reserves all rights.”   

15. On 21 March 2025 at 8:08am, the solicitor for the Receivers replied, copied to the other parties’ lawyers (emphasis added - I shall refer to the emphasised sentence as the Assurance):

“Our clients reject any suggestion that they or the bank have done, or would do, anything to frustrate a refinance. Plainly it is in the bank's interest to be repaid in full.

Our clients will not agree to the proposed qualification to the orders due to the subjectivity that they introduce. The qualification would have the effect of allowing the caveator to simply refuse to withdraw the caveat based on an allegation that the refinance did not occur due to the fault of one of the other parties. That would simply require another extensive hearing to determine the reasoning why the refinance did not proceed. That leaves our clients in no more certain position than simply proceeding with the hearing today, which they have already incurred the costs of preparing for.

Accordingly, while our clients are prepared to offer the final opportunity to 7 April, it must be on the basis that there is a certainty of outcome one way or the other by that date. They will work with the relevant parties in that time diligently to assist their efforts to obtain the refinance.”

16. On 21 March 2025 at 8:49am, 37 York Rd’s solicitor replied, copied to the other parties’ lawyers:

“Thank you for your email confirming the Receivers' and Judo Bank Pty Ltd's position.

In light of that email, we are instructed our client is prepared to consent to the orders as proposed by the Receivers.

We would be grateful if you would circulate final short minutes for execution.”

17. The orders were then made pursuant to the correspondence which I have set out above.

18. On 26 March 2025 at 3:42pm, the solicitor for the proposed incoming financier emailed Judo Bank’s solicitor, including:

“As discussed, in order to allow the refinancing to occur (and repay Judo the amount it claims is owed to it under the financing arrangements), the incoming lender will need a mortgage over the property. Given a receiver is currently appointed to the property, this will require the items listed below.

As agreed in our discussion, the below list should be fairly uncontroversial from Judo's / the Receiver's perspective. In fact, we assume this is the preferred approach for Judo to be repaid in full. The attached letter (which we understand you have seen) sought to cater for this. Can you please mark up the attached to identify any concerns of Judo / the Receiver. As mentioned on the call, we are not concerned with the payout amount (that is a matter between your client and Procent) so happy for you to insert figures from your letter in that table.

1.   Consent to granting of mortgage in favour of incoming lenders to allow refinancing to occur;

2.   Termination of receiver on receipt of payout amount; and

3.   Release of GSA on receipt of payout amount.

You will note the letter does not deal with proceedings on foot between the parties as this is a separate matter and should not impact list above.

Please give me a call with any queries / concerns.”

19. On 28 March 2025 at 3:55pm the solicitor for Judo Bank emailed the incoming financier’s solicitor, but this time copied in the various lawyers for what might be described as all interested parties, being more than just the parties to the proceedings (emphasis added – I shall refer to the emphasised passage as the Comfort Request):

“I refer to recent correspondence. Given the various matters in dispute between Kurvest and Procent, the Bank would like to ensure all relevant parties are aware of the proposed refinance, and requests being made. We have therefore copied the legal advisors of both parties to this email, as well as the legal advisors of the Receivers.

First, would you please confirm which lender you act for and advise whether the anticipated date of refinance is still 31 March 2025?

Second, in response to the questions contained in your email dated 27 March 2025, we are instructed as follows:

1   On the basis that the matters identified in our attached letter dated 21 March 2025 (Payout letter) (and subject to point 2) are satisfied to the Bank's satisfaction, and the Bank has provided a discharge of its mortgage, the Bank would have no ongoing interest in the Kurnell Property.

2.   In addition, the Bank would like comfort that Kurvest Pty Ltd (Receivers and Managers appointed) is aware of the proposed refinance and does not intend on contesting the refinance. Given the various legal proceedings on foot, the proposed deed of release referred to in our Payout letter, should include releases given by Kurvest. We have copied Sage Solicitors to this email for their client's position.

3.   We have copied this email to Michelle Gordon of Corrs, solicitor for the Receivers, who will respond to your second question on behalf of the Receivers. We note, however, that the Receivers are presently the second and third defendants to the 2024 recission proceeding (2024/00339540) commenced by Procent Pty Ltd (Receivers and Managers appointed).

4.   The GSA has been provided by Kurvest and not Procent. Therefore, it is unclear the basis on which the incoming lender has an interest in the GSA.

In response to the draft letter prepared by Sparke Helmore, we are instructed that the Bank prefers and confirms the matters set out in the Payout letter save that we are instructed that the first indicative payout amount set out at paragraph 9 of the Payout letter, will need to be increased by the amount of $450,000 on account of the Receivers' expected legal and counsel fees so that the line item reads $966,704.00.”

20. On 1 April 2025, at 7:09pm, the solicitor for Kurvest and Mr Stojanovski emailed the lawyers for all the interested parties:

“I refer to the emails below and advise that Kurvest Pty Ltd and Otsi Stojanovski intend to oppose the refinance disclosed in the attachment to the affidavit filed on behalf of Procent and 37 York Rd.

Mr Stojanovski asserts that the Kurnell Property is being held on his behalf, as to 50%, and based on the limited information provided to him to date, he objects to the refinance. The new lender has been put on notice of his interest in the Kurnell Property and any attempt to provide finance to Procent to discharge the loan to Judo, will be at its own risk.

Further to this, Procent does not have the authority of the true owners of the Kurnell Property to pledge the Kurnell Property as security for the new finance.”

21. There is no dispute that the Refinance Proposal has not come to fruition. There is no direct evidence from anyone about why that is the case. However, implicit in 37 York Rd’s submissions was the submission that the Court should infer it is because of what was conveyed on behalf of Kurvest and Mr Stojanovski in the email set out in the preceding paragraph.

37 York Rd’s submissions

22. Mr Burke's application was that Order 7 should be set aside or varied, such that 37 York Rd would be entitled to move the Court for an order that the caveat be extended for a further seven days to enable his client to obtain the necessary finance to complete the Refinance Proposal.

23. In the urgent circumstances of the present application in the Duty List, the precise jurisdiction being invoked was not identified, be it the Uniform Civil Procedure Rules 2005 (NSW) Pt 36 r 36.16 or the Court's inherent jurisdiction. However, no point was taken about that by Mr Knowles SC and the parties approached the matter by reference to what might be called, with no disrespect intended, as "general principles".

24. Mr Burke accepted that a contractual analysis should be applied, but with the Court nevertheless having an overall discretion to vary or set aside the orders as a matter of justice. He submitted that the agreement (the express terms of which were never identified with any precision) contained an implied term that each party had an obligation to enable the other to have the benefit of the agreement: see, for example, Secured Income Real Estate (Australia) Ltd v St Martin Investments Pty Ltd (1979) 144 CLR 596; [1979] HCA 51 at 607 per Mason J (as his Honour then was) (Gibbs, Stephen and Aickin JJ agreeing).

22. 37 York Rd's case was that the email of Kurvest’s solicitor of 1 April 2025 (see [20] above) was a breach of the implied term, such that, at the very least, 37 York Rd could (and did by the present application) terminate the agreement, thereby removing the contractual substratum for Order 7.

23. Mr Burke also submitted that Order 7 should be read in light of the Assurance (see [15] above), although I did not understand him to contend it was part of the agreement. It was said the Assurance was departed from by Judo Bank making the Comfort Request (see [19] above).

Defendants’ submissions

27. Mr Knowles SC relied on these dicta in the judgment of the Court of Appeal in Lachlan v HP Mercantile Pty Ltd (2015) 89 NSWLR 198; [2015] NSWCA 130:

“20   In Paino, at 198, McHugh JA stated that when a party seeks to set aside or vary a consent order based on contract and the underlying contract itself could not be set aside or varied, “the case would need to be exceptional before the Court would exercise its discretion in favour of an applicant”. His Honour added that:

“… by itself the failure of the applicant to comply with the terms of a consent order based on a contract could rarely, if ever, be a sufficient ground to vary the order.”

….

27   Contrary to the appellant’s submission, Paino did not impermissibly fetter the general discretion for which the rule provides. Rather, his Honour’s remarks were directed to a case where parties have bound themselves to a contract which underpins the court’s orders. In such a case, the court’s general discretion is to be exercised in the context of the respect the law gives to parties being held to their bargain. To relieve a party from the bargain they had freely entered, would, as McHugh JA remarked, require an exceptional case. Such an approach does not fetter the discretion of a judicial officer. Rather, it is a statement of an appropriate exercise of discretion in a particular type of case.”

28. He submitted that Order 7 was clear on its face, and that there was no exceptional circumstance proven by 37 York Rd that would warrant Order 7 being varied or set aside.

29. Furthermore, he contended that insofar as any implied obligation was being relied upon, it could not be a term that would have the effect of a provision expressly considered by the parties and rejected by them. The parties had rejected 37 York Rd's attempts to have the orders expressed in other than absolute terms, and 37 York Rd had ultimately agreed to that outcome.

30. Finally, he submitted that there was no evidence that Kurvest's position had in fact caused 37 York Rd not to be able to complete the Refinance Proposal.

Consideration

31. The Court has six reasons for rejecting 37 York Rd's application to vary or set aside Order 7.

32. First, Order 7 is clear in its terms and there is no need to go beyond its words. There is no dispute that the two conditions precedent in the chapeau to Order 7 have, in the events which have happened, been satisfied. Order 7 therefore applies, in the absence of the Court varying or setting it aside.

33. Second, I accept the submission that whatever implied term there might be in the agreement, it cannot be in terms or be construed to have an operation to the same effect as a term expressly considered and rejected by the parties. The parties rejected 37 York Rd's proposed qualification to Order 7. A term will not be implied or, if implied, it will not be construed in a way that would have the effect of the rejected qualification.

34. This is a matter in respect of which evidence of the contractual negotiations (in this case see [9]-[16] above) is admissible: see, Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 352-353 per Mason J (as his Honour then was) (Stephen and Wilson JJ agreeing). As Young J (as his Honour then was) observed in Brennan v Kinjella (1993) 6 BPR 13,168 at 13,172: “Accordingly, it seems to me that in this state the court can look at words which have been deleted in order to avoid the implication of terms which might otherwise have been implied.” See also Lewison and Hughes, The Interpretation of Contracts in Australia (2^nd edn, Lawbook Co, 2025) at [6.10] and [7.07] and Walker Group Constructions Pty Ltd v Tzaneros Investments Pty Ltd (2017) 94 NSWLR 108; [2017] NSWCA 27 at [114] to [120] per Bathurst CJ (Beazley P and Gleeson JA agreeing), noting that later that year the Court of Appeal held that ambiguity was not required to permit an examination of surrounding circumstances: Cherry v Steele-Park (2017) 96 NSWLR 548; [2017] NSWCA 295.

35. Third, I accept that even if there were such an applicable implied term, there is no evidence that Kurvest's conduct, allegedly in breach, has brought about 37 York Rd's inability to achieve the Refinance Proposal. I do not regard the evidence of the email exchanges as sufficient to enable the Court to draw the inference implicit in 37 York Rd’s submissions (see [21] above) in what appears to be a complex dispute where the various parties have different and conflicting commercial interests.

36. Fourth, in considering what is the benefit of the bargain to which a party is entitled, the bargain must be identified because the content of the implied term is confined by that bargain. The implied term cannot expand the parties’ substantive obligations under the agreement. In my respectful view, the bargain was that Kurvest and the other defendants agreed to an extension of the caveat until today to give 37 York Rd an opportunity to complete the Refinance Proposal and discharge Judo Bank's debt. This agreement was in return for at least Kurvest being paid its costs thrown away by reason of the adjournment of the caveat extension hearing before Meek J. On the evidence before me, nothing has been done contrary to that bargain, properly understood. I add for completeness that I would, on the same view of the bargain, have reached the same conclusion if 37 York Rd had relied on an implied negative covenant not to hinder the fulfilment of a party’s contractual obligations.

37. Fifth, I do not accept Mr Burke's submission that the orders should be read “in the light of” the Assurance (see [15] above). That statement does not have contractual effect. It goes no further, in my respectful opinion, than an expression of goodwill and, in any event, is made only on behalf of the Receivers and Judo Bank, and not Kurvest. Nor do I accept that Judo Bank’s Comfort Request (see [19] above) is a derogation from the Assurance, even if it had legally binding effect, which it does not.

38. Sixth, having regard to the principles set out in Lachlan, it may be accepted that the cases generally speak of an applicant in the position of 37 York Rd being required to show, in accordance with the principles of contract, something which would vitiate the underlying contract (for example, fraud or mistake) to warrant the setting aside or varying of consent orders made pursuant to the parties’ agreement. Nor do I overlook McHugh J's observation quoted in Lachlan, that failure to comply with the consent order could rarely be a sufficient ground to set aside the order.

39. Nevertheless, in my respectful view, if a party were able to show that it had a right to terminate the contract which had been carried into execution by the parties consenting to the making of orders (as opposed to a vitiating factor), that might, depending on the facts, be sufficient to provide the Court with a basis to set aside those orders. It may also be, at the very least, that the existence of a right of termination could constitute an exceptional circumstance within the principles referred to in Lachlan.

40. However, in the present case, because of the views I have set out above about the implied term, I am not satisfied that 37 York Rd has a right to terminate the agreement in any event. Furthermore, none of the matters raised by Mr Burke otherwise rises to the level of exceptional circumstances that would warrant the Court setting aside Order 7.

41. For these reasons, 37 York Rd's application will be dismissed.

Orders

42. Given it played no part today, Procent did not seek its costs. Mr Burke did not wish to be heard against his client being ordered to pay the other defendants’ costs of today. The Court’s orders were:

The Court:

1   Grants leave to the plaintiff to file in Court the affidavit of Alison McManus affirmed 7 April 2025.

2   Grants leave to the first defendant to file in Court the affidavit of Matthew Whitbread affirmed 7 April 2025.

3   Transfers the proceedings from the Real Property List to the General List.

4   Directs that the matter is to proceed by way of pleadings.

5   The plaintiff is to file and serve a statement of claim on or before 28 April 2025.

6   The defendants to file and serve any defences and cross claims on or before 26 May 2025.

7   The plaintiff is to file and serve any reply and defences to cross claims on or before 23 June 2025.

8   Lists the matter for directions before the Equity Registrar on 1 July 2025.

9   Liberty to any party to apply on 7 days’ notice.

10   Notes that it is possible that an application may be made to have the proceedings case managed with proceedings 2023/463906.

11.   The plaintiff is to pay the first, third and fourth defendant’s costs of today.

**********

Decision last updated: 10 April 2025