Defined Properties Investment ATF the Defined Property Trust No 1 v National Commercial Finance Pty Ltd (No 2)

[2017] NSWSC 1623

Supreme Court

New South Wales

Medium Neutral Citation:	Defined Properties Investment ATF the Defined Property Trust No 1 v National Commercial Finance Pty Ltd (No 2) [2017] NSWSC 1623
Hearing dates:	20 November 2017
Date of orders:	20 November 2017
Decision date:	20 November 2017
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	Order 4 made by Harrison J on 7 November 2017 be continued up until 5pm on Tuesday next, 28 November, and that the matter come into the list that day before the duty judge at 10am.  Costs reserved.
Catchwords:	PRACTICE AND PROCEDURE – application for a short adjournment granted for plaintiff to obtain necessary funds to resolve the matter
Legislation Cited:	Civil Procedure Act 2005 (NSW)
Cases Cited:	Defined Properties Investment ATF the Defined Property Trust No. 1 v National Commercial Finance Pty Ltd [2017] NSWSC 1513.
Category:	Procedural and other rulings
Parties:	Defined Properties Investment ATF the Defined Property Trust No 1 (First Plaintiff) George Dimitriou (Second Plaintiff) National Commercial Finance Pty Ltd (Defendant)
Representation:	Solicitors: ERA Legal (Defendant)
File Number(s):	2017/317826
Publication restriction:	Nil

EX TEMPORE Judgment

1. HER HONOUR: For reasons which his Honour gave on 7 November 2017, Harrison J made orders in terms which appear in his judgment which include an order restraining the defendant from exercising any purported power of sale over the property the subject of the proceedings: Defined Properties Investment ATF the Defined Property Trust No. 1 v National Commercial Finance Pty Ltd [2017] NSWSC 1513.

2. The matter was stood over to before the duty judge, yesterday 20 November 2017. On that occasion it emerged that the parties were pursuing settlement negotiations, with the result that by consent I extended the restraint until 5pm today and listed the matter again at noon.

3. Today, the position is that no agreement has yet been reached.

4. Mr Dimitriou says he is in the position where he needs to obtain legal advice on a deed of forbearance and other matters, and that he has arranged to see a solicitor at 6pm today, to obtain that advice; and that there are other matters which he needs to discuss with the defendant, before a settlement can be finalised, including in relation to the appointment of receivers and the impact that has on an incoming loan.

5. While the application was supported by an affidavit sworn by Mr Dimitriou sworn on 21 November for the adjournment and the continuation of the restraint was not consented to. Finally, however, the defendant did not wish to be heard further on Mr Dimitriou being granted a short adjournment in order to put himself in the position where what lies in issue between the parties can be resolved by agreement.

6. It should be noted that considerable concern was expressed by the defendants, that the result of the course which Mr Dimitriou seeks to pursue is that when the matter next comes into the list before the duty judge, the position will not be markedly different to that revealed to Harrison J on 3 November 2017.

7. There seems to me to be a real basis for that concern given what has been revealed in Mr Dimitriou’s affidavit and the submissions which he has advanced. Nevertheless, accepting as I do, that a further short restraint is desirable, consistently with the requirements of s 56 of the Civil Procedure Act2005 (NSW) and its emphasis on the just, quick and cheap resolution of the real issues in the proceedings, I have thus concluded that the further adjournment and continuation of Order 4, which Mr Dimitriou seeks, should be granted.

8. Accordingly, I order that Order 4 made by Harrison J on 7 November be continued up until 5pm on Tuesday next, 28 November, and that the matter come into the list that day before the duty judge at 10am.

9. Costs are reserved.

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Decision last updated: 24 November 2017