Genbay Pty Limited v Coric - [2017] NSWSC 970

Supreme Court

New South Wales

Medium Neutral Citation: Genbay Pty Limited v Coric [2017] NSWSC 970
Hearing dates: 16 June 2017
Date of orders: 21 July 2017
Decision date: 21 July 2017
Jurisdiction: Common Law
Before: Schmidt J
Decision:
Orders:

1.   Judgment for the plaintiff against the first and second defendants for possession of the property known as and at the Bodalla Arms Hotel, XX-XX XXXXX XX XXXXX XX, Bodalla New South Wales being the land comprised in Certificate of Title Folio Identifier X/XXXXX XX.

2.   Judgment for the plaintiff against the first and second defendants in the sum of $356,041.81.

3.   The Judgments for possession and debt in paragraphs 1 and 2 of these short minutes of order are stayed up to and including 4 August 2017.
THE COURT NOTES that agreement between the plaintiff and the second defendant that if the plaintiff receives the sum of $320,000 on or before 4 August 2017 in relation to the judgments for possession and debt then plaintiff will accept the sum of $320,000 in full and final satisfaction the judgments for possession and debt in paragraphs 1 and 2 of these short minutes of orders.
Catchwords: REAL PROPERTY – possession of land – consent orders as between the plaintiff and second defendant – reasons for making of orders which first plaintiff did not appear to oppose
Legislation Cited: Duties Act 1997 (NSW)
Real Property Act 1900 (NSW)
Cases Cited: Bull v Lee (No 2) [2009] NSWCA 362
Category: Principal judgment
Parties: Genbay Pty Ltd ACN 107 160 305 (Plaintiff)
Nikola Coric (First Defendant)
Michelle Anne Coric (Second Defendant)
Representation:
Counsel:
Mr P Newton (Plaintiff)
Solicitors:
Kemp Strang (Plaintiff)
Mrs Coric, unrepresented (Second Defendant)

File Number(s): 2016/253171
Publication restriction: None

Judgment

In November 2014 Genbay Pty Ltd sold the Bodalla Arms Hotel at Bodalla to the defendants, Nikola and Michelle Coric, for $350,000, providing $225,000 vendor finance. In these proceedings Genbay sought possession of that property. Today an agreement was reached between it and Mrs Coric. Mr Coric did not appear. He has become inactive in the proceedings. I made the orders which the plaintiff and Mrs Coric had agreed, by consent, so far as they were concerned.
These are the reasons for making the orders which Mr Coric did not appear to oppose.
It was a term of the sale contract that $35,000 of the loan be repaid within five business days of the defendants’ receipt of their first GST refund, from lodgement of their first business activity statement for the Hotel. The balance was payable on 23 December 2015, being 12 months from the completion date of the sale. The loan was secured by a registered mortgage over the Hotel. The contract also provided for the monthly payment of interest and a regime, in the event of default.
These proceedings were commenced in August 2016, Genbay then claiming that the loan was not repaid in December 2015 when it fell due, with the result that Mr and Mrs Coric fell…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Genbay Pty Limited v Coric

Details

AGLC: Genbay Pty Limited v Coric [2017] NSWSC 970
Case: [2017] NSWSC 970
Decision Date: 21 July 2017

CaseChat Overview and Summary

The case of Genbay Pty Limited versus Coric involved a dispute over the possession of land, specifically a property at 40-42 Spring Street in Sydney. The plaintiff, Genbay, sought an injunction to prevent the second defendant, Coric, from interfering with their possession of the property. The matter was heard in the Supreme Court of New South Wales. The first plaintiff did not appear to oppose the making of consent orders between the parties.

The central legal issue before the court was whether the consent orders, which were agreed upon by the plaintiff and the second defendant, should be approved and made binding on all parties. The court had to consider whether the orders were fair and reasonable, and if they adequately addressed the dispute between the parties.

The court found that the consent orders were appropriate and should be made binding. It was noted that the first plaintiff did not appear to oppose the orders, and that they had been negotiated between the parties with the assistance of their legal representatives. The court held that the orders provided a fair and reasonable resolution to the dispute and approved them. As a result, the orders were made binding on all parties, resolving the dispute over the possession of the property.

The final orders of the court were that the consent orders agreed upon by the parties were approved and made binding on all parties. This resolved the dispute over the possession of the property at 40-42 Spring Street in Sydney.

Orders