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

[2018] NSWSC 152

Supreme Court

New South Wales

Medium Neutral Citation:

Defined Properties Investment Pty Ltd ATF The Defined Property Trust No 1 v National Commercial Finance Pty Ltd [2018] NSWSC 152

Hearing dates:

16 January 2018

Date of orders:

16 January 2018

Decision date:

16 January 2018

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

(1) Judgment for possession of the whole of the land comprised and described in Certificate of Title Folio Identifier [redacted], being the land situated and known as [redacted] (the Land).

 

(2) Order that the first plaintiff and the second plaintiff give vacant possession of the Land within 7 days of the date of these orders.

 

(3) The defendant be granted leave pursuant to rule 29.1 Uniform Civil Procedure Rules 2005 (NSW) to issue the first plaintiff with a Writ of Possession in the form attached to these orders and marked "A", forthwith.

 

(4) The first plaintiff and the second plaintiff pay the defendant’s costs of these proceedings as agreed or assessed.

 

(5) The proceedings otherwise be dismissed.

 (6) The defendant has leave to enter the orders forthwith.

Catchwords:

POSSESSION – Writ of possession – Deed of Forbearance – Consent Orders

Category:

Procedural and other rulings

Parties:

Defined Properties Investment Pty Ltd ATF The Defined Property Trust No 1 (First Plaintiff)
George Dimitriou (Second Plaintiff)
National Commercial Finance Pty Ltd (Defendant)

Representation:

Counsel:
Second Plaintiff (self-represented)
D Anderson (Defendant)

  Solicitors:
ERA Legal (Defendant)

File Number(s):

2017/317826

Publication restriction:

Nil

Judgment

1. This is a matter that was commenced by summons filed in Court on 20 October 2017 seeking an order that execution of the writ of possession be stayed. Orders were made by Kunc J restraining the sale of the property up to and including 26 October 2017. On 25 October 2017 Campbell J made consent orders adjourning the matter until 3 November 2017. As part of those orders, the defendant undertook to not exercise its power of sale before that date.

2. On 3 November 2017 Harrison J made orders that gave further time for the plaintiffs to pursue refinance. At that time, the defendant opposed the continuation of the interlocutory orders. His Honour took the view that further information regarding the breakdown of the loan figure was required. The judgment of Harrison J of 7 November 2017 (Defined Properties Investment ATF the Defined Property Trust No.1 v National Commercial Finance Pty Ltd [2017] NSWSC 1513) outlines the history of the matter before the Court in detail.

3. On 20 November 2017, Schmidt J further extended time for the plaintiffs to refinance. Her Honour also noted that Mr Dimitriou, at that stage, said he needed to obtain legal advice on a Deed of Forbearance, amongst other things, and that he had arranged for legal advice to be given. Schmidt J provided a further adjournment and continuation of the operative orders to 28 November 2017.

4. The matter then came before Rothman J. He also provided further time for the plaintiffs to facilitate the continuing negotiation on the Deed of Forbearance.

5. Subsequent to this, the matter was referred to mediation, which I have been informed took place on 12 December 2017. The matter did not resolve, but by 19 December 2017, there was an agreed Deed of Forbearance. I have been informed by Mr Anderson on behalf of the defendant that there were consent orders held in escrow until today. Those consent orders, signed by the parties on 19 December 2017 provide for judgment for possession of the whole of the relevant parcel of land at Bella Vista, that the plaintiffs give vacant possession within seven days, and that the defendant has leave to issue a writ of possession in the form annexed to the consent order.

6. I have had tendered before me today a copy of the Deed of Forbearance signed on 19 December 2017 by Mr Dimitriou in both his personal capacity as second plaintiff, as well as his role of director of the first plaintiff.

7. Mr Anderson has requested that I make orders in accordance with the consent orders. Mr Dimitriou, who appears for himself today, has argued that I should not make those orders because he says he has not been able to access the relevant fund and that this is due to circumstances beyond his control of which he asserts Mr Anderson is aware.

8. Mr Dimitriou sought to file in court a notice of motion which seeks a combination of orders that are in my view almost incomprehensible. The first two orders are ones that I cannot accede to. The first is an order setting aside the Deed of Forbearance and the second is an order setting aside the consent judgment.

9. In the circumstances of this matter and how it has proceeded before this Court, with repeated extensions of time and indulgences granted to Mr Dimitriou, it would fly in the face of the interests of justice if a judge of this Court were to simply go back on all the proceedings and orders before, including orders signed by the plaintiffs themselves, and simply set them aside.

10. In reviewing the notice of motion and affidavit, I stress that they are not received by me as an application to be actioned in this Court but illustrate the obstructive approach with which Mr Dimitriou has conducted this litigation, namely, at the last minute, trying to seek to revisit and vacate prior orders – even ones he agreed to – and to fail to adhere to agreements reached and orders made in the proceedings.

11. I make orders in accordance with the Consent orders signed by the parties dated 19 December 2017 which I will initial and place with the Court papers.

12. The defendant has leave to enter the orders forthwith.

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Decision last updated: 20 February 2018