Brown v Blackley

[2020] NSWSC 690

Supreme Court

New South Wales

Medium Neutral Citation:	Brown v Blackley [2020] NSWSC 690
Hearing dates:	30 April 2020
Decision date:	04 June 2020
Jurisdiction:	Equity - Real Property List
Before:	Robb J
Decision:	See par [117]. Parties are directed to confer in order to agree short minutes of order to give effect to these reasons for judgment.
Catchwords:	CIVIL PROCEDURE — Stay of proceedings – whether a further stay should be granted to allow additional time for the defendant to source funds to fulfil the plaintiff’s rights under a deed of loan – where the further stay is ordered with additional terms required by the Court
Legislation Cited:	Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Category:	Procedural and other rulings
Parties:	William Thomas Brown (first plaintiff) Karen Frances Anne Blackley (first defendant) Commonwealth Bank of Australia Limited (second defendant)
Representation:	Counsel: T Di Francesco (first plaintiff) B Miller (sol) (first defendant)   Solicitors: John Allanson & Associates (first plaintiff) Garland Hawthorn Brahe (first defendant)
File Number(s):	2019 / 51495

Judgment

1. The plaintiff, Mr William Thomas Brown, commenced these proceedings by statement of claim filed on 15 February 2019.

2. The primary relief sought by Mr Brown against the first defendant, Ms Karen Frances Anne Blackley, concerned the enforcement of Mr Brown's rights under a deed of loan between Mr Brown and Ms Blackley made on 30 March 2017.

3. Under the deed of loan, Mr Brown advanced Ms Blackley $300,000 repayable on the earlier of 30 October 2017 and the sale of a property at Riverview in this State (the property).

4. Mr Brown pleaded that, on 30 March 2017, he advanced $258,000 to Ms Blackley, and retained $42,000 as prepayment of interest up to 30 October 2017, in accordance with cl 3 of the deed of loan.

5. The deed of loan contained a term which had the effect that the interest on the principal amount of $300,000 would be 2% per month, but 3% per month if Ms Blackley was in default.

6. Clause 11 of the deed of loan obliged Ms Blackley to indemnify Mr Brown for all expenses and legal costs incurred in the event of default.

7. Also on 30 March 2017, Ms Blackley executed a mortgage over the property as security for her obligations under the deed of loan.

8. The mortgage contained a power of sale exercisable by Mr Brown in the event of default by Ms Blackley.

9. It also contained a covenant by Ms Blackley to indemnify Mr Brown for all expenses and legal costs incurred by him in enforcing the mortgage and the deed of loan.

10. In 2017, Mr Brown caused caveat AM272664 to be registered over the title to the property to protect his interest under the mortgage, but Mr Brown has not registered the mortgage as a legal mortgage on the title to the property.

11. The second defendant is the Commonwealth Bank of Australia Ltd (the Bank). It has a first registered mortgage on the title to the property. That is recognised by Mr Brown, and the relief he seeks is subject to all of the rights of the Bank under its mortgage.

12. By his statement of claim, Mr Brown sought judgment against Ms Blackley in the sum of $300,000. He also sought judgment for interest on the principal amount at the rate of 3% per month, or alternatively under s 100 of the Civil Procedure Act 2005 (NSW).

13. Also, Mr Brown sought a declaration that, subject to the prior ranking interest of the Bank's registered mortgage, he has an equitable mortgage over the property to secure payment to him of the sums that are owed.

14. Relevantly, Mr Brown sought an order for judicial sale of the property on such terms as the Court considered appropriate, and further, and in the alternative, an order that the property be sold by Mr Brown or other fit and proper persons to be appointed as trustees for sale. The orders sought included the terms upon which the judicial sale would be conducted.

15. To aid in the enforcement of the orders, Mr Brown sought an order that Ms Blackley deliver up vacant possession of the property to the plaintiff, or the trustees appointed to conduct the sale, as well as leave to Mr Brown to issue a writ of possession forthwith.

16. Mr Brown sought an order that Ms Blackley pay his costs on the indemnity basis required by the deed of loan and the mortgage.

17. On 17 July 2019, Mr Brown filed a notice of motion seeking summary orders as requested in his statement of claim under rules 16.3 and 16.4, or in the alternative rule 13.1, of the Uniform Civil Procedure Rules 2005 (NSW).

18. Ms Blackley did not have any defence to Mr Brown's claims for relief.

19. On 9 August 2019, by ex tempore judgment, Darke J found that it was appropriate that judgment be entered in favour of Mr Brown against Ms Blackley in the sum of $489,000, which was inclusive of interest up to judgment. His Honour found that interest should run after that date at the rate prescribed for the purpose of s 101 of the Civil Procedure Act. His Honour also found that it was appropriate that and an order be made that Ms Blackley pay the costs of Mr Brown on the indemnity basis, having regard to the provisions of the loan and mortgage documents. Further, his Honour found that orders should be made substantially in accordance with the orders sought in the motion for a judicial sale of the property.

20. However, having regard to certain matters contained in the solicitor for the plaintiff, Mr Miller's affidavit of 8 August 2019, and submissions made by Mr Miller to Darke J, his Honour considered that there was at least a prospect of Ms Blackley being able to repay the money either in whole or in part within the not too distant future. Having regard to that possibility, his Honour considered that it was appropriate to stay the orders that the Court would make up to and including 4 October 2019. The matter would be listed in the Real Property List on that day.

21. On 9 August 2019, Darke J made orders substantially in the form sought by Mr Brown in his notice of motion. Orders 1 to 7 gave Mr Brown the relief that he sought in his statement of claim. The effect of orders 8 and 9 was that, upon Mr Brown taking possession of the property pursuant to orders 6 and 7, he was required to immediately hand over possession of the property to the Bank to enable the Bank to conduct a mortgagee sale of the property pursuant to the first mortgage. Liberty was granted to Mr Brown by order 9 to approach the Court to seek orders to take back possession of the property and seek ancillary orders to enable Mr Brown to conduct a judicial sale of the property, if the Bank did not progress the mortgagee sale.

22. Order 10 stayed the operation of the orders up to and including 4 October 2019.

23. It appears that, on 4 October 2019, Ms Blackley sought a further stay of the earlier orders, and Darke J made case management orders to enable the application to be heard, extended the stay up to and including 31 October 2019, and stood the proceedings over to that date.

24. On 31 October 2019, Darke J granted a further extension of the stay up to and including 5 November 2019, and adjourned the matter to that date.

25. It is my understanding that on 5 November 2019, the hearing took place, and his Honour made the following orders:

The Court:

1.   Upon the condition that the first defendant pay to the plaintiff by no later than 8 November 2019 the sum of $250,000, such sum to be deposited into either of the accounts detailed in the email that is attached to these orders, extends the operation of the stay of the orders made on 9 August 2019 up to and including 30 April 2020;

2.   Stands the matter over to 30 April 2020 at 9:30 AM before Darke J;

3.   Reserves the question of the costs of the stay applications the subject of the appearances on 4 October 2019, 31 October 2019 and 5 November 2019.

26. On 30 April 2020, at the direction of Darke J, this matter came on for hearing by me. The Court heard submissions based upon earlier affidavits filed in these proceedings, and also affidavits made by Ms Blackley on 29 April 2020 and by Mr Miller on 30 April 2020.

27. The Court on that date made orders and notations that included the following:

3.   Notes that the first defendant has paid the amount of $250,000 referred to in order 1 made on 5 November 2019.

4.   Subject to order 5, stays the orders made on 9 August 2019 up to the day when the Court gives judgment on the application heard on 30 April 2020.

5.   Orders that the stay made by order 4 does not prevent the plaintiff from prosecuting any step necessary to obtain payment of any costs order made by the Court in favour of the plaintiff.

6.   Grants leave to the first defendant to file and serve further evidence in support of her application for a further stay plus any submissions made in support of the application by 5pm on Thursday, 7 May 2020.

7.   Grants leave to the plaintiff to file and serve evidence in response to any submissions by 5pm on 14 May 2020.

8.   Reserves costs.

9.   Notes that the Court reserves judgment and will if it thinks appropriate consider the further evidence and submissions in chambers.

28. In essence, for reasons that I will consider below, on 30 April 2020, Ms Blackley asked the Court to make an order further extending the stay of the original orders until 30 August 2020.

29. During the course of Mr Miller's submissions in support of that application, I explained to Mr Miller that it did not appear to me that Ms Blackley had offered what I described as a "bankable proposition" to support her application for an extension of the stay. As I explained at the time, what I meant by that observation was that Ms Blackley did not appear to have offered to provide the sort of protection and security for Mr Blackley's position that a bank may consider would be appropriate to justify it making an advance to a borrower. Ms Blackley could hardly expect the Court to subject Mr Brown to the additional risks of a further stay of the orders unless it was satisfied that Ms Blackley had taken additional steps to entirely protect Mr Brown from any risks that he would not recover the full amount of the money due to him under the orders made by the Court on 9 August 2019. I did not suggest that the offer of a "bankable proposition" would necessarily lead to a further stay of the orders, but I suggested that the Court could hardly be expected to consider extending the stay in the absence of such a proposition.

30. In response to the observations made by the Court, Mr Miller asked for a short adjournment to enable Ms Blackley to improve her offer of security to Mr Brown. I granted that request, as I considered that it would be necessary in any event for the Court to reserve its judgment, as I was not entirely familiar with the history of the matter when it was being dealt with by Darke J, and it seemed likely that it would take at least some weeks for me to be able to consider the case and to deliver the judgment.

31. After discussion with the parties' legal representatives, case management orders were made as set out above.

32. It will be appropriate to review the primary aspects of the affidavit evidence going back to the evidence that led Darke J to order the original stay of his orders. It is not necessary to canvass the evidence in detail.

33. By his affidavit made on 8 August 2019, Mr Miller put before the Court a judgment and orders made by Henderson J in the Family Court of Australia on 20 June 2019 in proceedings between Ms Blackley and her husband.

34. The judgment apparently concerned competing applications by Ms Blackley and her husband for interim property distributions, which involved the sale of real estate rental rolls that his Honour said, based upon the evidence, might lead to a net amount to be divided between the parties of between $400,000 and $450,000. One of the purposes of the application given by Ms Blackley was the need to repay the money owing to Mr Brown, who was said to have a third mortgage secured over the property.

35. At par 42 of his judgment, Henderson J noted that the total debt to the Bank was then $1,300,000. Ms Blackley owed $300,000 to Mr Brown and a total of $724,000 to other creditors, some of whom were friends and one was her brother. And Ms Blackley asserted that, by September, an aunt of hers would be able to assist her to purchase her interest in the property. Ms Blackley was in financial difficulty because she was owed a substantial unpaid child support debt and was not being given any interim income by her husband. Ms Blackley had incurred the debts in order to try to preserve her ownership of the property for herself and her children.

36. Henderson J made an order that the parties sell the rent roll and that they be paid certain interim amounts. By order 6, the balance of the monies remaining after the payments of costs of sale and any tax payable on the sale of the rent roll was to be paid in reduction of the debt to Mr Brown.

37. By evidence contained in his affidavit of 4 October 2019, Mr Miller explained why the rent roll had not been sold. It was asserted that the sale had been thwarted by steps taken by Ms Blackley's husband. Ms Blackley had been appointed the licensee of the relevant real estate business, and pursuant to the orders to that effect, she was in a position to sell the business and/or the rent roll. Mr Miller said that on the sale of the business and/or the rent roll, funds would be applied to reduce the debt to Mr Brown in whole or in part as the sale proceeds allowed.

38. Those steps were made possible by further interim orders made by Henderson J on 27 September 2019.

39. In an affidavit sworn on 5 November 2019, Ms Blackley said that her family law proceedings were listed for five days on 21 February 2020.

40. She said that negotiations were in train to sell the rent roll for an amount of $302,000.

41. Ms Blackley also gave evidence that her aunt, Ms Norton, was the owner of a home unit at Kurraba Point in Sydney and that Ms Norton had entered into a contract to sell the home unit. Ms Blackley said that it was Ms Norton's intention to use the proceeds of sale of the home unit to purchase an interest in the property, and to that intent Ms Norton had placed in the trust account of Ms Blackley's solicitors the sum of $250,000 as part payment of her purchase of the interest in the property.

42. Ms Blackley annexed the contract of sale of the home unit, and acknowledged that the contract was conditional on the purchaser receiving development consent in a form satisfactory to the purchaser. The contract contemplated that on completion the purchaser would also complete the purchase of other properties that made up the proposed development.

43. Ms Blackley said that she was advised by Ms Norton that development consent should issue in February 2020.

44. Ms Blackley acknowledged in her affidavit that she had been present in court on the last two occasions and fully appreciated the concern of both Mr Brown and the Court that Mr Brown be paid monies due to him at as soon as may be practicably possible. She then said in par 17:

I am trying to balance my obligation to pay the Plaintiff the monies due to him with my obligation to care for my five children (aged 11 to 19 years) (in circumstances where their father is currently on bail pending an appeal against a custodial sentence) and my elderly aunt.

45. Ms Blackley then said that, in the event that there were insufficient funds generated by the sale of the rent roll to pay Mr Brown, or the home unit did not settle in sufficient time to release funds to enable Ms Norton to purchase an interest in the property, she accepted that she must sell the property to pay Mr Brown.

46. Ms Blackley requested in her affidavit that the Court grant a stay of the judgment against her to 30 April 2020.

47. It appears that it was on that basis that, on 5 November 2019, Darke J granted the further stay until 30 April 2020.

48. As I have noted above, as a condition of the further stay, his Honour required Ms Blackley to pay the amount of $250,000 into trust, and that has been done.

49. Mr Brown's solicitor, Mr Allanson, swore an affidavit in the proceedings on 28 April 2020.

50. The affidavit established that Ms Blackley's family law solicitors had lodged a caveat against the title to the property to protect a mortgage granted by Ms Blackley to them on 14 June 2019.

51. Ms Norton had also lodged a caveat to protect a mortgage granted to her by Ms Blackley on 6 December 2019. That mortgage was evidently to protect Ms Norton's interest in the $250,000 that she had provided to Ms Blackley.

52. Mr Allanson noted that neither he nor Mr Brown had been advised of the existence of the mortgages.

53. While that may be so, it is clear that, as the mortgages were granted after the mortgage given by Ms Blackley to Mr Brown, and also after Mr Brown lodged his caveat against the title to the property, Mr Brown's mortgage will take priority over the later two mortgages.

54. Mr Allanson said that neither he nor Mr Brown had received information from Ms Blackley or her lawyers about the rent roll sale or the completion of the sale of the home unit since the date of Ms Blackley's 5 November 2019 affidavit.

55. Mr Allanson said that Mr Brown was concerned that, if there was a fall in the property market in 2020, Ms Blackley should not be able to rely on that fall in the market price to obtain a further stay of enforcement of the judgment.

56. Mr Allanson said that the amount of the judgment sum was $489,000. Interest of $8736 had accrued to 6 November 2019, and a further $8244 in interest had accrued to 30 April 2020.

57. Mr Allanson acknowledged that, on 6 November 2019, his firm had received into its trust account payment from Ms Blackley of $250,000 in part payment of the judgment. The net amount owed to Mr Brown on 6 November 2019 was $247,736. The amount owing on 30 April 2020 would be $255,980.

58. Mr Allanson noted that he had prepared, but not yet served, a bill of costs which totalled $24,633.40 for solicitors' costs and an additional amount of $25,456.25 (both inclusive of GST) for disbursements.

59. Mr Brown wished to proceed with serving the bill of costs and having those costs assessed if agreement could not be reached with Ms Blackley.

60. One of the orders made by the Court on 30 April 2020 permitted Mr Brown to proceed with the quantification of the amount of costs payable to him by Ms Blackley.

61. At the hearing on 30 April 2020, Ms Blackley tendered a notice of default served on her by the Bank. The notice of default stated that as at 12 March 2020, the payout figure on two loans made to Ms Blackley was $1,357,415.08.

62. It appears that amount included a sum of $158,055.51 for which Ms Blackley was in default.

63. As at 30 April 2020, the total amount owed to the Bank and Mr Brown, including the full amount of costs and disbursements claimed by him, was $1,663,487.73. That amount will be increasing as a result of additional interest being incurred as well as Mr Brown's further legal costs.

64. Ms Blackley swore a further affidavit on 29 April 2020.

65. Ms Blackley said that the final hearing of her family law proceedings commenced on 17 February 2020, but on 20 February 2020 it was adjourned to 29 June 2020 because the Court wished to be provided with an updated valuation of the property.

66. Ms Blackley noted that, in an affidavit sworn by Mr Brown on 17 July 2019, he had annexed a valuation of the property dated 10 August 2018 which valued the property at $3,300,000. A further valuation of the property as at 1 November 2017 obtained by Ms Blackley was annexed to the affidavit, which gave a valuation of $3,950,000.

67. Ms Blackley calculated that she had an equity in the property of $1,687,100 on the basis of Mr Brown's valuation, or $2,337,100, on the basis of her valuation, after payment of the priority debts owed to the Bank and Mr Brown.

68. Ms Blackley said that, as Ms Norton was owed $250,000 and her family law solicitors had claimed $350,000, giving a total of $600,000, there was still an equity of over $1,000,000 in the property using the plaintiff's valuation after all claimed secured debts were repaid.

45. Ms Blackley annexed a copy of an affidavit sworn by Ms Norton in the Family Court proceedings in which she confirmed her intention to provide the additional funds to pay out the balance of the debt due to Mr Brown out of the $1,800,000 that she expected to receive upon the completion of the contract for the sale of her home unit.

46. Ms Blackley also annexed a copy of a letter from the solicitors for the purchaser of Ms Norton's home unit to Ms Norton's solicitor. The letter confirmed that the purchaser had received a notice of determination of its development application.

47. The letter referred to a right in the purchaser to form an opinion as to whether it was satisfied with each of the conditions of consent. The letter referred to the purchaser experiencing significant delays as a result of the effects of the shutdown caused by the present pandemic.

48. The letter referred to the settlement date of 9 August 2020 under the contract, and said that the purchaser's ability to bring settlement forward from that date remained uncertain.

49. In the final paragraph of her affidavit, Ms Blackley said that her husband's appeal against his convictions for assaults on her children was heard on 27 April 2020 with the conviction being upheld. Her husband was then in custody serving a 4.5 year jail term for the assaults. Ms Blackley said her children have been traumatised by the events involved in the charges against her husband and the subsequent appeal, which has caused them considerable anxiety with which Ms Blackley has had to deal.

50. It was on the basis of this evidence that I reserved judgment, after receiving submissions from the parties, on 30 April 2020.

51. I have now had an opportunity of considering the contract for the sale of Ms Norton's home unit.

52. The date for completion is governed by special condition 45, which provides:

45.1 Completion Date

Completion of this Contract is on the date that is the earlier of:

(a)   sixty (60) days from the date that the Purchaser notifies the Vendor in writing that Development Consent has been obtained on terms satisfactory to the Purchaser, in its sole discretion; or

(b)   9 August 2020.

77. The result is that there is a final completion date of 9 August 2020.

78. However, special condition 46 provides that completion of the contract is conditional upon, and interdependent with, completion of contracts for the purchase of adjacent properties, which appear from Annexure C to the contract to be 17 in number.

79. Accordingly, although 9 August 2020 is the final completion date, there is a possibility that completion of the contract for the sale of Ms Norton's home unit will not take place on that date. There is the ordinary risk that the purchaser may not be able to complete. Additionally, there is the risk that the purchaser may become entitled to rescind the contract because one of the other contracts of sale does not complete.

80. Mr Miller swore a further affidavit on 7 May 2020.

81. First, he explained why Ms Blackley had not applied any part of the net proceeds of sale of the rent roll in repayment of the debt due to Mr Brown. The net proceeds of sale were $200,135.79. Of that amount, $75,000 was required to be paid to Ms Blackley's husband pursuant to an order of the Family Court so that he could fund his appeal against his criminal conviction. The balance of the money was used by Ms Blackley to pay part of her legal costs of the family law proceedings, and part of debts accumulated by her for living expenses, given that she was being provided with no income by her husband.

82. Shortly, Mr Miller referred to a notice to produce served by Mr Brown on Ms Blackley on 4 October 2019, which required production of documents relevant to the following issue. The rent roll that was sold belonged to the real estate company operated by the husband. Notwithstanding the orders of the Family Court, an issue may have arisen as to whether any repayment made to Mr Brown out of the proceeds of sale of the rent roll might have to be repaid to any liquidator of the company if an order was made for its winding up. The documents, of which there were 14 categories, appeared to be relevant to an assessment by Mr Brown as to whether it was safe for him to accept partial repayment of his debt from that source.

83. Mr Miller said in his affidavit that he formed the view, given Ms Blackley's financial difficulties, that it would be too expensive and uncertain for him to try to persuade Mr Brown and his solicitor that he could safely be repaid out of the proceeds of sale of the rent roll.

84. Consequently, Mr Miller advised Ms Blackley to seek an alternative source of partial repayment of the debt owed to Mr Brown. That led to Ms Norton providing Ms Blackley with the $250,000 that has been referred to above.

85. Consequently, I accept that, even though Ms Blackley did not use any part of the proceeds of sale of the rent roll to repay Mr Brown, she had a reasonable justification for not doing so, and she has, in any event, arranged an alternative source of partial repayment of Mr Brown, being the $250,000 made available by Ms Norton.

86. The second subject dealt with by Mr Miller is the likelihood that the Bank will move on its default notice and exercise its power of sale of the property before 30 August 2020.

87. Mr Miller annexed to his affidavit a letter from the solicitors for the Bank to him dated 7 May 2020. The letter advised that the Bank would withhold from proceeding with enforcement action until after 30 August 2020, subject to the following condition:

If prior to 30 August 2020 the stay on the orders made in the Proceedings on 9 August 2019 is lifted, or expires, and William Thomas Brown takes possession of the Property pursuant to those orders and, in accordance with those orders, hands possession to CBA, then CBA will be entitled to proceed with a mortgagee sale of the Property.

88. Mr Miller stated in his affidavit that Ms Blackley had instructed him to accept on her behalf the condition imposed by the Bank. Consequently, any further orders made by the Court continuing the stay of the earlier orders would have to include an order that accorded with the condition required by the Bank.

89. The third matter dealt with in Mr Miller's affidavit concerns the interest that will accrue on the judgment made in favour of Mr Brown between 30 April 2020 and 30 August 2020.

90. Mr Miller calculated the amount of the interest as being $5,589.33. Mr Miller referred to evidence in Mr Brown's 17 July 2019 affidavit in these proceedings, in which he deposed to his solicitor holding $8,000, which Mr Miller said was the balance of the amount that Mr Brown had originally withheld from the $300,000 advance.

91. Mr Miller stated in his affidavit that Ms Blackley is content for the amount of $5589.33 to be deducted from the $8000 and paid to Mr Brown to cover the interest that will accrue to 30 August 2020.

92. Finally, Mr Miller annexed an email dated 7 May 2020 to him from Ms Norton, in which Ms Norton stated that she agreed to provide a mortgage to Mr Brown over her home unit in the amount of $255,980, for a term expiring on 30 August 2020, at a rate of interest of 6.75% if the principal amount was not repaid by 30 August 2020. Ms Norton said that the mortgage was otherwise to be on standard mortgage terms, and she agreed that Mr Miller should draft the mortgage for her to sign.

93. Mr Allanson swore a further affidavit on 14 May 2020.

94. The first subject that Mr Allanson dealt with was Mr Brown's health. This is a convenient place for the Court to record that the evidence establishes that Mr Brown is not a commercial lender, and only made the advance to Ms Blackley on the basis of an assurance that it would be a short term loan. The default in repayment under the loan agreement has caused Mr Brown considerable disappointment and anxiety.

95. Mr Brown has informed Mr Allanson that he has been diagnosed with a serious new illness and was due to be admitted to hospital on 18 May 2020 to have very serious surgery.

96. That led Mr Allanson to say in par 4 of his affidavit:

Mr Brown informs me that he wishes to have this loan matter with the First Defendant ("Ms Blackley") brought to an end as quickly as the Court may allow so that he does not have this matter as an ongoing worry for him and he can more easily focus on other parts of his life.

97. Mr Allanson then dealt with the $8000 that he holds in his trust account that was raised in Mr Miller's affidavit.

98. Mr Allanson accepted that on Ms Blackley's instructions he would be authorised to pay the $8,000 in his trust account to Mr Brown.

99. Mr Allanson appears to accept that, if the current Court interest rate does not change, then the interest that will accrue between 1 May 2020 and 30 August 2020 on the judgment debt will be $5,588.82.

100. Mr Allanson also included calculations to show that the interest that accrued between 7 November 2019 and 30 April 2020 was $8,244.

101. A bill of costs for the amount of solicitors' legal costs and disbursements referred to above was, according to Mr Allanson, served on Mr Miller on 10 May 2020.

102. Mr Allanson pointed out that interest will be accruing on the outstanding legal costs as well as the balance of the judgment debt.

103. As Mr Allanson said, the $8,000 is not sufficient to cover all of the interest to which Mr Brown will become entitled if a stay of the orders is extended to 30 August 2020.

104. That observation is no doubt correct, but as I understand it, Ms Blackley had offered to use the $8,000 to cover the amount of interest that will accrue between 30 April 2020 and 30 August 2020 as a form of consideration for the extension of the stay order.

105. I accept that Ms Blackley has established a means of paying Mr Brown the interest that will accrue over the period of the further stay order that is sought, but in the circumstances, if the stay is extended, it would be appropriate to require Ms Blackley to authorise Mr Allanson to pay the whole of the $8,000 to Mr Brown on account of all of the interest to which he will become due.

106. The next issue dealt by Mr Allanson was the value of the property. He annexed a new valuation by the valuer who had provided Mr Brown with the earlier valuation report. The valuation as at 14 May 2020 gave a value falling within the range $3,000,000 to $3,300,000.

107. In relation to the mortgage that Ms Norton has offered to grant to Mr Brown, Mr Allanson said that, on 13 May 2020, he sent an email to Mr Miller raising various concerns about the form and content of the offer. As at the 14 May 2020 date of swearing his affidavit, he had not received a reply.

108. A copy of Mr Allanson's 13 May 2020 letter was annexed to Mr Brown's counsel's written submissions dated 14 May 2020.

109. The letter indicated that Mr Brown did not seek a further security over the home unit, as was proposed, because of a number of concerns expressed in the letter. Those concerns included: the conditional nature of the contract of sale; the purchaser has registered a caveat on the title; no copy of the contract of sale has been adduced in evidence; there was uncertainty as to the nature of the mortgage being offered in relation to its priority; Mr Brown might experience the same sort of difficulties in enforcing the mortgage as he faces in the present case; there may be uncertainty as to the enforcement of the mortgage without Ms Norton obtaining independent legal, financial and accounting advice; and there was uncertainty as to whether Mr Brown would be forced to sell the property first before exercising his power of sale over the home unit.

110. Mr Brown's submissions also annexed a reply email by Mr Miller dated 14 May 2020.

111. Mr Miller rightly pointed out that the contract of sale is in evidence. I have referred to some of its terms above.

112. Mr Miller noted that there was no preclusion in the contract of sale against Ms Norton granting the mortgage that she has offered to grant.

113. Mr Miller said that, if Mr Brown was not repaid his debt by 30 August 2020, Mr Brown could choose to enforce the mortgage granted to him by Ms Norton. However, Mr Miller said that he thought the reality would be that Mr Brown would enforce the orders that he already has against Ms Blackley in respect of the property.

114. In respect of Ms Norton being given appropriate independent legal advice, Mr Miller noted that she had received such advice in relation to the original $250,000, as she was granted a mortgage and lodged a caveat. Mr Miller noted that updating advice could be obtained satisfactory to Mr Brown.

115. Finally, in his affidavit, Mr Allanson explained why he had served the notice to produce relating to the application of the proceeds of sale of the rent roll in partial payment of the debt owed to Mr Brown. The course followed by Mr Allanson was reasonable, but I consider that the position has been explained by Mr Miller, and a substitute source of funds was found by Ms Blackley, as I have explained above.

116. Mr Miller provided further written submissions to the Court on 7 May 2020, and counsel for Mr Brown did the same on 14 May 2020. The submissions covered the matters that I have referred to above that were dealt with in the further affidavits sworn by the parties' solicitors. The final submission made on behalf of Mr Brown was that in all the circumstances the Court should find that Ms Blackley has had enough indulgences from the Court and no further stay should be granted.

117. For the reasons I will now set out, I will make an order extending the existing stay of the orders made on 9 August 2019. However, the further stay will only be ordered on the terms that I will require.

118. First, on the basis that the present value of the property is assumed to be $3,000,000, which is the bottom of the range given in Mr Brown's most recent valuation, Ms Blackley's equity in the property, after payment of the debts owed to the Bank and Mr Brown, will be about $1,300,000. I consider that a security buffer of that amount should protect Mr Brown over the additional four months of the stay.

119. While, in the manner that I have explained above, completion of the contract for the sale of Ms Norton’s home unit is conditional, there is a substantial likelihood that it will occur, as the purchaser appears to have invested a very considerable effort in amassing all of the contracts for the purchase of the home units in the relevant block, and it is unlikely that the purchaser will readily waste all of that effort and the opportunity to make the profit that led the purchaser to engage in the development project in the first place.

120. Consequently, there is at least a substantial chance that Mr Brown will be paid the outstanding monies owed to him at about the same time as he would secure payment if the stay of the orders was not continued.

121. I consider that Ms Blackley has genuinely done what she could do to repay Mr Brown in a timely manner. She has plainly struggled against the absence of the provision of income by her husband, and the expense and delay caused by the Family Court proceedings, and has pursued the primary objective of protecting her children in the face of the extraordinary circumstances that have led to the incarceration of her husband.

122. It must be a condition of the further stay that Ms Norton provides to Mr Brown the mortgage that she has offered to provide. It will be reasonable for Mr Brown, in a positive and commercial way, to indicate to Ms Blackley and Ms Norton the protections that he requires. If the appropriate terms cannot be settled cooperatively, the parties will have leave to relist the matter before me to deal with the issue.

123. I do not consider any of the concerns raised by Mr Brown, even though reasonable in themselves, to stand in the way of Mr Brown becoming entitled to the additional security offered to be provided by Ms Norton.

124. I accept that it is entirely reasonable for Mr Brown to require that these proceedings be brought to an end, and that he be paid the money that is owed to him.

125. Consequently, I would not make an order extending the stay without Ms Blackley first formally making an undertaking to the Court that, if she does not cause the amount of the judgment and all other amounts due to Mr Brown or claimed by him pursuant to the 9 August 2019 orders to be paid to him or paid into court on or before 30 August 2020, she will give vacant possession of the property to Mr Brown on that date.

126. At the hearing on 30 April 2020, Mr Miller made the submission that, even if the stay was not extended, the delays that would necessarily follow from the issue of the writ of possession, the sale campaign for the property, and the time necessary to complete any contract of sale, would likely have the result that the sale would not be completed until a date around August of this year anyway. That may be true, but it justifies the Court imposing the further condition that will guarantee Mr Brown vacant possession of the property on 30 August 2020, if Ms Blackley's hopes are not fulfilled. There can be no thought of any further extensions.

127. I should explain the subject of the undertaking that will be required more fully. It must provide that vacant possession will be given to Mr Brown, if he is not repaid by 30 August 2020 all of the amounts due under the 9 August 2019 orders that are capable of calculation. However, in respect of any amounts such as interest and costs claimed by Mr Brown that are in dispute, Ms Blackley must pay the amounts not in dispute to Mr Brown and pay the balance claimed by Mr Brown into court. That is necessary so that the mortgage that has been granted to Mr Brown can be discharged. It accords with the rule that a mortgagor is not entitled to an order restraining the mortgagee from exercising a power of sale, where the validity of the mortgage is not in issue, without the mortgagor first paying to the mortgagee, or paying into court, the full amount claimed by the mortgagee.

128. The amount payable in respect of Mr Brown's costs must include all of the applications for which costs had been reserved. Subject to Mr Brown's costs claims being apparently reasonable, he is entitled to the protection of the amounts claimed being paid into court, pending any argument as to what orders should be made in respect of reserved costs.

129. Provision should be made in the orders for the $8,000 in Mr Allanson’s trust account to be paid out to Mr Brown on account of the interest due to him.

130. The orders to be made should also include the order sought by the Bank to which Ms Blackley has agreed.

131. I will reserve the costs of this application so that all reserved costs can be dealt with at the one time.

132. The parties have leave to obtain from my associate a date for a directions hearing at 9:30 AM on one convenient morning, either shortly after 9 August 2020 or 30 August 2020, whichever seems more appropriate to the parties. The earlier date may be the most practical, because it will then be known whether the purchaser of the home unit has completed the contract on 9 August 2020.

133. The parties are directed to confer in order to agree short minutes of order to give effect to these reasons for judgment. If agreement can be reached, I will make orders in chambers. If not, and it is necessary for me to settle the orders, the parties should arrange an appropriate hearing date with my associate.

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Decision last updated: 09 June 2020