Fingret v Vescio

[1999] NSWSC 1280

CITATION:	Fingret & Anor v Vescio [1999] NSWSC 1280
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	10605/99
HEARING DATE(S):	19 October 1999
JUDGMENT DATE:	19 September 1999
PARTIES :	Edward Geoffrey FINGRET & Anor - Plaintiffs Paul Michael VESCIO - Defendant
JUDGMENT OF:	Simpson J

COUNSEL :
SOLICITORS:	Browne & Associates - Applicant
CATCHWORDS:
DECISION:	Application for injunction granted.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SIMPSON J

Tuesday 19 October 1999

10605/99

Edward Geoffrey FINGRET & Anor v Paul Michael VESCIO

Judgment

HER HONOUR :

1    The applicant in these proceedings is Paul Michael Vescio who is the defendant in proceedings brought by Edward Geoffrey Fingret and Janet Shirley Fingret, in possession of a property over which Westpac Bank holds a first mortgage and the plaintiffs hold a second mortgage.

2    Because of the applicant's defaults under the mortgage, a writ of possession was issued on 13 July 1999 in favour of the plaintiffs and steps have been taken to arrange to have the property sold by auction. The auction is scheduled for 7 o'clock or thereabouts tonight.

3    Late in the afternoon today I was advised by telephone that an application for injunction would be made to restrain the conduct of the auction and the applicant, with his father and solicitor, attended with the relevant documentation at 5 past 5 this afternoon. The application was supported by the affidavit of Damien Parks, management consultant, sworn 19 October 1999 and the applicant himself, sworn the same date.

4    Mr Parks relevantly deposed that the expected sale price of the property is $650,000.

5    During the course of proceedings I was told that the amount owing to Westpac under the first mortgage is about $450,000 and, as best as can be discerned, the total amount now owing to the plaintiffs including arrears of interest, the estimated legal costs which may be subject to challenge and the costs of the auction, are potentially in the vicinity of $103,000, making a total of $553,000.

6    The plaintiff deposed that efforts had been made in recent times to obtain a proper estimate of the total amount owing to the plaintiffs through the plaintiff's solicitors, Kremnizer & Co, and that the figures I have just referred to were ultimately those provided, although there is some uncertainty about how they are made up and whether they are the current figures.

7    There are two matters in the plaintiff's affidavit that are of significance. The first is that he deposed that he and his father on Monday, 18 October, visited the plaintiffs and that Mrs Fingret said that she was happy to receive the interest, and it appears that agreement was reached to stop the auction. The defendant confirmed that conversation in oral evidence before me which, of course, given the nature of these proceedings, was not subject to cross-examination.

8    In his affidavit the defendant also said the solicitor representing the plaintiffs said that he could not stop the auction, having regard to the amount of fees owing to his firm.

9    The second matter of significance is that the defendant alleges that the property concerned is on two titles but has not been advertised as such, which would be expected to draw a larger sale price. The defendant has given an undertaking as to damages in the event that an injunction is granted.

10    It seems to me that the only real bases for the injunction are the two matters to which I have referred, that is the asserted agreement of the plaintiffs to accept monies owing and cancel the auction, and the asserted failure to market the property in such a way as to secure the best price.

11    Put before me in evidence also was a letter from a loan organisation confirming that it is prepared to advance to the plaintiff $600,000, subject to verification of the information stated on the application form and a satisfactory valuation on the property. This amount would be sufficient to make the necessary payments to the plaintiffs and also to Westpac, thus, in my opinion, securing adequately the position of the plaintiffs.

12    Having regard to all of those matters I do propose to grant the injunction sought. I order that Ray Ross Pty Ltd, trading as Ray White Real Estate Manly, be joined as a party to the proceedings for the purpose of the following orders, and I restrain the plaintiffs and Ray Ross Pty Ltd from proceeding to auction or sell or dispose of the property at 1/2 A and 2/2 A Kentwell Parade North Manly composed in folio identifier 1/SP 55060 and 2/SP 55060 until further order.

13    I direct that notice of that order be given in the first instance by telephone to both first respondents. That will have to be done by 6:45pm. I order that notice be confirmed by facsimile machine as soon as possible when the order has been taken out.

14    I will make the matter returnable before me at 10 am on Thursday morning, 21 October 1999. I will add to those orders noting the defendant gives the appropriate undertaking for damages.

15    I order also that the defendant serve in the usual manner copies of the orders, the notice of motion, the affidavits and the exhibit, Exhibit A, on the plaintiffs and on the second respondent.

***

Last Modified: 04/18/2001