David George Sharpe v Hargraves Secured Investments Limited ACN 089 001 267 67

[2014] HCASL 66

DAVID GEORGE SHARPE

v

HARGRAVES SECURED INVESTMENTS LIMITED ACN 089 001 267 67

[2014] HCASL 66
S274/2013

1. The applicant defaulted under a loan agreement which had been entered into with the respondent in 2009. Following mediation, the respondent obtained a certificate under s 11 of the Farm Debt Mediation Act 1994 (NSW) ("the Act") on the basis that the applicant had failed to comply with the terms of a heads of agreement agreed between the parties. The effect of that certificate was that the Act did not apply to the loan agreement, so that the respondent was not precluded from taking action to enforce the terms of its securities against the applicant.

2. The respondent commenced proceedings in the Supreme Court of New South Wales, seeking repayment of the loan and orders for possession of the two properties.  On 5 June 2012, the parties entered into a Deed of Settlement, given effect by a consent judgment, under which the applicant agreed, amongst other things, that one of his properties would be sold.  After a further dispute between the parties, the property was not sold.  In October 2012, the respondent obtained writs of possession for both properties.

3. The applicant applied to the Supreme Court (Harrison J) to stay or set aside the writs of possession in respect of both properties, on the basis that enforcement of securities against the applicant was precluded under the Act. On 13 May 2013, Harrison J dismissed the application with costs. The Court of Appeal of the Supreme Court of New South Wales (Ward and Leeming JJA) refused the applicant leave to appeal from the primary judge's decision. The applicant now seeks special leave to appeal to this Court from the orders of the Court of Appeal.

4. As the applicant does not have legal representation, the application falls to be dealt with under r 41.10 of the High Court Rules 2004.

5. We see no reason to doubt the correctness of the conclusions reached by the Court of Appeal.  No question of principle is raised for consideration by this Court.  An appeal to this Court would enjoy insufficient prospects of success to warrant a grant of special leave to appeal.

6. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

K.M. Hayne
2 April 2014 S.M. Crennan