Hajjar v 104 880 088 Group Holdings Pty Ltd

[2019] NSWCA 298

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Hajjar v 104 880 088 Group Holdings Pty Ltd [2019] NSWCA 298
Hearing dates:	5 December 2019
Date of orders:	09 December 2019
Decision date:	09 December 2019
Before:	Macfarlan JA; Payne JA
Decision:	Summons seeking leave to appeal dismissed with costs.
Catchwords:	APPEAL – application for leave to appeal – no arguable grounds of appeal – no issue of principle
Cases Cited:	Harvey v Phillips (1956) 95 CLR 235; [1956] HCA 27
Category:	Procedural and other rulings
Parties:	Elias Hajjar (Applicant) 104 880 088 Group Holdings Pty Ltd (First Respondent) Westpac Banking Corporation Limited (Second Respondent)
Representation:	Counsel: Self-represented Applicant R D Glover (First Respondent) K Shaw (Solicitor) (Second Respondent)   Solicitors: Self-represented Applicant Gillis Delaney Lawyers (First Respondent) Thomson Geer (Second Respondent)
File Number(s):	2019/66019
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity Date of Decision: 1 February 2019 Before: Lindsay J File Number(s): 2018/96349

Judgment

1. THE COURT: This is an application for leave to appeal from consent orders made by Lindsay J on 1 February 2019 giving Westpac Banking Corporation Limited (“Westpac”) judgment for possession of a property at Lugarno owned by Mr Elias Hajjar, the present applicant.

2. The proceedings at first instance were commenced on 27 March 2018 by the present first respondent (“180GH”) against Mr Elias Hajjar as first defendant, Westpac as second defendant, Mr Nicolas Hajjar as third defendant and Prime Finance Pty Ltd, Mr Morris Malouf and Ms Shirley Malouf as fourth, fifth and sixth defendants respectively. 180GH alleged that it was the holder of a “Third Unregistered Mortgage”, that Westpac was the holder of a “First Registered Mortgage”, that Mr Nicolas Hajjar was the holder of a “Second Unregistered Mortgage” and that the fourth, fifth and sixth defendants were the holders of a “Second Registered Mortgage”.

3. The proceedings were listed for hearing before Lindsay J on 1 February 2019. Mr Elias Hajjar appeared in person. 180GH, Westpac and Mr Nicolas Hajjar had legal representation and the fourth, fifth and sixth defendants filed submitting appearances.

4. The consent orders that Lindsay J made on that day relevantly provided:

1. That Westpac was to have possession of the Lugarno property and be entitled to sell it.

2. That after deduction of the monies owing to it under the First Registered Mortgage, Westpac was to pay the balance of the proceeds of sale into court “to abide further orders of the Court”.

3. By Order 11: “RESERVE to the plaintiff, the first defendant and the third defendant liberty to apply for orders that funds in court (consequent upon sale of the land pursuant to these orders) be paid out of court in accordance with such, if any, entitlements they may respectively have”.

4. By Order 12: “NOTE that, on any application for payment of funds out of court pursuant to that reservation of liberty to apply, it may be necessary for notice of the application to be given to Chadia Gedeon-Hajjar (the wife of the first defendant) having regard to orders ostensibly made by the Family Court of Australia on 5 April 2016 in proceedings, in the Sydney Registry of the Family Court of Australia, numbered SYC949/2016”.

5. The reference to Family Court orders was to consent orders made on 5 April 2016 in proceedings between Mr Elias Hajjar and his wife, Ms Gedeon-Hajjar. They provided for the Lugarno property to be placed on the market for sale by private treaty, with the proceeds of sale to be applied, first, to discharge Westpac’s mortgage.

6. The transcript of the proceedings before Lindsay J on 1 February 2019 includes the following passages:

“HIS HONOUR: I’m sorry. Let’s take it in that order. Do you challenge the mortgage of Westpac?

FIRST DEFENDANT: No.

HIS HONOUR: On any basis, that there’s money owing by you which is subject to a mortgage, that the first mortgage, is not disputed?

FIRST DEFENDANT: That is fine. No dispute there.

…

HIS HONOUR: No, stop there. I need to take one step at a time otherwise I’m not going to follow it. So the first mortgage debt of roughly $600,000 is not disputed?

FIRST DEFENDANT: Not at all.

…

HIS HONOUR: What has been proposed is that we make the sort of orders that everyone apparently agrees to, and allow you six weeks to vacate the property.

FIRST DEFENDANT: Two month.

HIS HONOUR: Well, I am not going to–

FIRST DEFENDANT: What’s the maximum allowable.

HIS HONOUR: I am trying, I am trying to get everybody-

FIRST DEFENDANT: Can I leave it up with Westpac to discuss it with them.

HIS HONOUR: I will go off the bench for another ten minutes or so. Let me know when you are ready, okay.

…

FIRST DEFENDANT: Can I say something. If it has a question mark as to what rights it gives to somebody if they have possession, I would suggest Westpac would have the possession.

…

HIS HONOUR: … An undertaking to the Court is like a promise, Mr Hajjar, it is a promise, but it is a promise that has the same effect as a court order, so if you do not comply with an undertaking, which is a promise which is the equivalent of a court order, you would be in contempt of court as a result of which there could be proceedings taken against you. I don’t tell you that to terrify you, I just tell you that is the effect of the undertaking and you need to be satisfied as to that. The undertaking that is recorded here is that you will cause vacant possession of the land to be given up to the bank no later than the 2nd of April. Do you give the undertaking?

FIRST DEFENDANT: Yes.”

7. In his Summary of Argument dated 23 September 2019 and filed in this Court, Mr Elias Hajjar makes a number of allegations concerning 180GH and its Chief Executive Officer. It is not necessary, nor indeed possible on the limited information made available to the Court, to determine whether these allegations have any merit. What is relevant for present purposes is that Mr Elias Hajjar’s rights to pursue his grievances against 180GH were preserved by the consent orders made by Lindsay J. As indicated at [4(3)] above, subject to the discharge of Westpac’s debt, the proceeds of sale of the property are to be paid into court to await the determination of claims that Mr Elias Hajjar and others have to them. As also indicated above (at [6]), Mr Elias Hajjar admits his debt to Westpac and that he is in default of his obligation to repay that debt. He confirmed that in the course of his oral address to this Court.

8. For the following reasons, Mr Elias Hajjar’s Summary of Argument did not identify any arguable basis for the challenge he now apparently makes to Lindsay J’s consent orders. First, he has not identified any basis upon which he would not be bound by the consent which he gave, which is clearly reflected in the transcript of the hearing. A person challenging consent orders of this character needs to show grounds for setting them aside analogous to those required to vitiate an ordinary contract (Harvey v Phillips (1956) 95 CLR 235; [1956] HCA 27 at 243-4). Secondly, Mr Elias Hajjar has not in any event identified any aspect of the consent orders which conflicts with the grievances (about 180GH and its CEO, rather than Westpac) which he identified in his Summary of Argument.

9. Mr Elias Hajjar raised further matters in supplementary submissions which he filed in this Court on 22 November 2019.

10. First, Mr Elias Hajjar said that his wife should have been represented before Lindsay J because she has “equitable rights in the property”. He says in this respect that Lindsay J was not made aware of a caveat that she is said to have filed.

11. The consent orders however preserve Ms Gedeon-Hajjar’s interests by enabling her to claim against the proceeds of sale paid into court after discharge of Westpac’s debt (see [4(4)] above). It is plain from the Family Court consent orders that Ms Gedeon-Hajjar had no objection to the property being sold and Westpac’s debt being paid. Indeed, the Family Court consent orders provided for that to occur.

12. Secondly, Mr Elias Hajjar contended that Lindsay J “relied on Westpac’s apparent neutrality” in ordering that Westpac have possession of the property. It appears that Mr Elias Hajjar may contend in this respect that there is a financial relationship between Westpac and 180GH. Even if there is, it does not suggest anything untoward has occurred that might provide a basis for challenging Lindsay J’s orders, particularly bearing in mind that they were made by consent.

13. For these reasons, Mr Elias Hajjar has not shown that he would have any prospects of success on appeal if leave to appeal were granted. As a result, his summons seeking leave to appeal is dismissed with costs.

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Decision last updated: 09 December 2019