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

DAVID GEORGE SHARPE
v
HARGRAVES SECURED INVESTMENTS LIMITED ACN 089 001 267 67
[2014] HCASL 66
S274/2013

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.
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.
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.
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.
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.
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

CaseChat Overview and Summary

The applicant, David George Sharpe, has applied to the High Court for special leave to appeal from the decision of the Court of Appeal of the Supreme Court of New South Wales, which dismissed his application to set aside orders for possession of two properties. The respondent, Hargraves Secured Investments Limited, had originally entered into a loan agreement with the applicant in 2009, which the applicant subsequently defaulted on. The respondent obtained a certificate under the Farm Debt Mediation Act 1994 (NSW) that the Act did not apply to the loan agreement, allowing the respondent to enforce the terms of its securities against the applicant. Following mediation, the parties entered into a Deed of Settlement and consent judgment, under which one of the applicant's properties would be sold. However, the property was not sold, and the respondent obtained writs of possession for both properties. The applicant sought to stay or set aside the writs of possession, arguing that enforcement of securities against him was precluded under the Act. The Supreme Court and the Court of Appeal both dismissed the application, finding that no question of principle was raised for consideration by the High Court and that an appeal would enjoy insufficient prospects of success.

The legal issues before the Court were whether the Court of Appeal had correctly determined that no question of principle was raised for consideration by the High Court and whether the appeal had sufficient prospects of success. The Court found that the Court of Appeal had correctly determined that no question of principle was raised, as the issue of whether the Act applied to the loan agreement had already been considered and determined by the Supreme Court. The Court also found that the appeal had insufficient prospects of success, as the Court of Appeal had correctly applied the relevant legal principles and there were no grounds for the High Court to intervene.

The High Court dismissed the applicant's application for special leave to appeal, finding that the Court of Appeal had correctly determined that no question of principle was raised and that the appeal had insufficient prospects of success. The Court directed the Registrar to draw up, sign and seal an order dismissing the application. The Court of Appeal's decision stands, and the respondent is entitled to enforce the terms of its securities against the applicant, including possession of the two properties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established