Aquamore Credit Equity Pty Ltd v Bent

[2019] NSWSC 143

Supreme Court

New South Wales

Medium Neutral Citation:	Aquamore Credit Equity Pty Ltd v Bent [2019] NSWSC 143
Hearing dates:	20 February 2019
Date of orders:	20 February 2019
Decision date:	20 February 2019
Jurisdiction:	Common Law
Before:	Davies J
Decision:	1. Stay order made by Davies J on 19 February 2019 is discharged.  2. Defendants are to pay the Plaintiff’s costs of 20 February 2019 on an indemnity basis.
Catchwords:	LAND LAW – possession of land – writ of possession – where stayed on an ex parte basis – where applicant failed to disclose he was party to a deed with judgment creditor prohibiting stay being sought – application by judgment creditor for discharge of stay
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Procedural and other rulings
Parties:	Aquamore Credit Equity Pty Ltd as trustee for Spring Park Unit Trust (Plaintiff) Nicholas Arthur Bent (First Defendant) Claire Louise Brown (Second Defendant)
Representation:	Counsel: A Gandar (Plaintiff) Nicholas Arthur Bent (Defendants)   Solicitors: Summer Lawyers (Plaintiff) Self-represented (Defendants)
File Number(s):	2018/199529
Publication restriction:	Nil

Judgment

1. The first-named defendant in these proceedings, Nicholas Arthur Bent, made application to me yesterday evening for a stay of execution of a writ of possession which was to be executed by the Sheriff this morning. The plaintiff was not notified of that ex parte application. On the basis of the evidence that Mr Bent provided to me last night I made a stay of the writ until Friday the 22 February 2019 at 5pm, and I directed that the proceedings be listed before me on that morning with the plaintiff to be notified by 10am today of the orders.

2. The plaintiff applied to have the matter relisted this morning. It did so because of evidence it provided that on the 14 December 2018 the plaintiff and the defendants entered into what was called a Deed of Forbearance.

3. The deed was an agreement between the parties in relation to the payment of the judgment sum. It provided that the defendants acknowledged the amount which was owing to the plaintiff in an amount of approximately $3.4 million. The arrangement under the deed was that the defendants were to pay the plaintiff $150,000 on the execution of the deed, and thereafter either to repay what were called refinance moneys amounting to $3 million by the 21 December 2018 or to effect a bona fide and arm's length sale of the land by appointing a reputable real estate agent by the 11 January 2019. The failure to comply with the payment of the refinance moneys or to effect the bona fide and arm's length sale, the first aspect of which was the appointment of an agent by 11 January, meant that a fresh default event occurred.

4. Clause 3 of the deed said that, in the event that a fresh default event occurred, the defendants acknowledged a number of matters. Sub-para (e) of cl 3 provided that the defendants would not take any step whatsoever, whether directly or indirectly, to frustrate or delay the lender in exercising any of its rights, including enforcement rights under the security documents. Additionally, in the section of the deed under the heading "Debtor's Considerations" where the arrangement to pay the refinance moneys or effect a bona fide sale was contained, the following appeared:

[I]n the event of a breach under cl 1(b) above [that is the clause requiring the repayment of the refinance moneys or the appointment of an agent], the debtors agree the lender may proceed with its enforcement including execution of the writ of possession by the Sheriff for the Arcadia land and undertake to not seek a stay of the execution of the said writ of possession.

5. The first defendant did not inform me in making his application last night either of the existence of this deed or of the fact that the deed in its terms prevented him from seeking a stay, as he sought. His explanation for that today is that he did not know that the deed prevented him from doing so. However, he obtained legal advice before signing the deed, and he signed it. He gave no explanation for not informing me about the deed itself, and his failure to comply with it.

6. The information should have been provided to me. It was an ex parte application where a full and frank explanation of the circumstances should have been provided. That alone would have been sufficient ex debito justitiae to discharge the stay on the writ of execution, but in addition the deed which was signed by him expressly prevents a stay from being sought by the defendants. In those circumstances the order I made staying the writ on 19 February 2099 is discharged.

7. The plaintiff seeks costs of the application today. It does so first because disclosure was not made to me on the ex parte application. If such disclosure had been made the stay would not have been granted and it would not have been necessary for the plaintiff to come to court today to have the orders discharged.

8. The plaintiff’s second basis is contained in cl 7 of the deed which provides that "the debtors must pay or to the extent already paid by the lender reimburse the lender on demand for all fees, costs, charges and expenses incurred by the lender in connection with this deed".

9. The defendant said that the deed was signed under duress. However, as I have mentioned, the defendants obtained legal advice before they entered into the deed. Nor was there any evidence of duress before me. Full disclosure should have been made to me last night. In any event, by reason of the legal representatives for the plaintiff needing to be here today, the plaintiff would be entitled to its costs pursuant to cl 7 of the deed. Those costs under cl 7 are payable on a solicitor and client basis. Accordingly, the defendants are to pay the plaintiff's costs of today on an indemnity basis. I vacate the listing of the proceeding on Friday the 22 February 2019.

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Decision last updated: 22 February 2019