Hargraves Secured Investments Ltd v Poole
[2012] NSWSC 1612
•21 December 2012
Supreme Court
New South Wales
Medium Neutral Citation: Hargraves Secured Investments Ltd v Poole [2012] NSWSC 1612 Hearing dates: 06/12/2012, 07/12/2012 Decision date: 21 December 2012 Jurisdiction: Common Law Before: Garling J Decision: (1) Notice of Motion filed 3 December 2012 is dismissed.
(2) Defendants to pay the plaintiff's costs.
Catchwords: PROPERTY - urgent relief sought - application for stay of execution of writs of possession and stay of consent judgment - whether plaintiff in breach of deed of settlement and release - whether plaintiff responsible for community awareness which caused adverse effect on sale of land - whether plaintiff's tardy provision of information and disadvantageous wording in letter adversely impacted refinancing - consideration of what is fair, reasonable and in interests of justice - defendants have previously been given various periods of time to arrange their affairs - plaintiff has not been in breach of obligations -consideration of whether defendants should be given further time to explore opportunity which may raise capital necessary to repay the plaintiff - not in interests of justice to permit further time to the defendants to arrange their affairs - notice of motion dismissed. Category: Procedural and other rulings Parties: Hargraves Secured Investments Limited (P)
Peter Henry Poole (D1)
Barbara Poole (D2)Representation: Mr Mulquiney (P)
In person (D1)
In person (D2)
Hargraves Solicitors (P)
File Number(s): 2011/359831
Judgment
This is an application by notice of motion filed in court on 3 December 2012 by Barbara Jean Poole and Peter Henry Poole for orders that: -
"1. There be a stay of the writ of possession, and
2. There be a stay of the consent judgment".
The plaintiff, Hargraves Secured Investments Limited ("Hargraves"), which was the respondent to the motion, opposed the orders sought.
PROCEDURAL HISTORY
On 3 December 2012, the matter was adjourned to be heard by the duty judge on 6 December 2012. The hearing proceeded on that day and towards the end of the hearing Mr and Mrs Poole, who had appeared without the assistance of legal representation, sought an adjournment of the proceedings to 17 December 2012. The proceedings were accordingly adjourned part heard.
The hearing resumed on 17 December 2012. Because the proceedings had some urgency about them, I reserved judgment until today. Because this judgment is being delivered as a matter of urgency and in the course of the duty list in the court's vacation, these reasons will necessarily be shorter and less expansive and more infelicitously expressed than if there were more time available to the court to prepare its reasons for judgment.
FACTUAL BACKGROUND
It is necessary to recount some history and background in order to understand the issues between the parties.
Mr and Mrs Poole are the owners of a series of rural properties at Coonabarabran and Bendemeer. In addition, they own two blocks of land situated within the township of Coonabarabran. It is convenient if I refer to all of the land together for present purposes.
In the period between February 2006 and April 2009, Hargraves made a series of loans to Mr and Mrs Poole which loans were secured by mortgages over their land. Ultimately, it appears, by about April 2009 a sum in excess of $2.5M had been loaned. Mr and Mrs Poole subsequently defaulted on the latest of these loan agreements.
In July 2010, Mr and Mrs Poole, on the one hand, and representatives of Hargraves, on the other, attended a Farm Debt Mediation. As a consequence of the Farm Debt Mediation, all parties signed a document entitled Heads of Agreement. There is disagreement now between the parties as to whether that document accurately recorded the outcome of the agreement reached at the mediation.
On 10 November 2011, Hargraves commenced proceedings in this court by filing a statement of claim. It sought a monetary judgment from Mr and Mrs Poole in the sum of a little over $3.3M and it sought orders for possession of the rural property at Coonabarabran, the rural property at Bendemeer and the property in the township of Coonabarabran. No defence was filed by Mr and Mrs Poole to this claim.
On 1 March 2012, default judgment was entered in the proceedings against Mr and Mrs Poole. In or about early April 2012, Mr and Mrs Poole were served notices to vacate the security properties issued by the Sheriff's Office of New South Wales. Evictions were scheduled in late April and early May 2012.
On 13 April 2012, Mr and Mrs Poole filed a notice of motion in the proceedings seeking, amongst other things, orders staying the execution of the writs of possession and also seeking to set aside the default judgment. That notice of motion was returned before this court on 23 April 2012 at which time orders were made staying the execution of the writs of possession in respect of the security properties and listing the notice of motion filed for hearing on 15 May 2012.
On 15 May 2012, that notice of motion was heard by Stephen Campbell J and his Honour reserved his judgment. Thereafter, Mr and Mrs Poole and Hargraves engaged in settlement negotiations. The court was asked to refrain from delivering judgment to enable those negotiations to be concluded.
On 6 July 2012, the matter was relisted before Stephen Campbell J who was informed that the parties had resolved the entirety of the matter in dispute, had settled or at least agreed upon the terms of a Deed embodying their agreement but that the parties needed a further seven days to execute and exchange the deed. At the request of the parties, his Honour stood the matter over to 16 July 2012.
On 16 July 2012, his Honour made the consent orders which the parties invited him to make. The consent orders were as follows:
"1. The plaintiff and each of the first and second defendants, having agreed to the terms set forth in the document annexed hereto and marked annexure A to these orders, it is ordered that all further proceedings in this claim be stayed except for the purpose of carrying such terms into effect.
2. Liberty to apply as to carrying such terms into effect on two days notice."
At that time, Mr and Mrs Poole were represented by a firm of lawyers, McCabes. Hargraves were also represented by a firm of lawyers.
Attached to the consent orders was a Deed of Settlement and Release which was dated 11 July 2012. Insofar as that Deed provided for operative terms, it included that Mr and Mrs Poole were obliged on exchange of the Deed to provide to Hargraves an original form of a consent judgment. At that point of time, Hargraves had been issued with writs of possession but those writs were the subject of the stay order made in the proceedings before Stephen Campbell J.
The Deed of Settlement and Release agreed that Hargraves would hold the consent judgment and writs of possession in escrow during what was described as the "Borrower Sale Period". The consent judgment, which was to be held in escrow, was in the following terms:
"1. Judgment for the plaintiff against the first defendant and second defendant in the sum of $2.9 million.
2. Interest on the judgment amount of $2.9 million at a rate of 9.50% per annum calculated monthly up until repayment of the judgment referred to in order 1.
3. Judgment for the plaintiff for possession of the properties described in items 1 to 4 of the schedule as against the first and second defendant.
4. The notice of motion filed by the first defendant and the second defendant on 13 April 2012 is dismissed".
A schedule to the consent orders set out in full the description of the land to which I have earlier referred.
The Deed defined the Borrower Sale Period as 120 days from the date of the Deed, that is to say a period in the order of four months from 11 July 2012 which would conclude on or about 10 November 2012. The Deed envisaged that during the Borrower Sale Period, Mr and Mrs Poole would remain in possession of all of the properties which had been secured, that they would immediately take steps to market and list the properties for sale or to take steps to secure a refinancing in respect of the properties and that Mr and Mrs Poole would also pay to the lender the sum of $2.9M together with interest at 9.5%.
In addition, the deed contained many other conditions which dealt with the way in which relationships between Mr and Mrs Poole and Hargraves would be conducted in the event that properties were the subject of a successful sale agreement. It is unnecessary to set out all of those conditions.
As well, the Deed recorded a price at which Hargraves consented to the proposed sales of each of the properties. The Deed went on to make provision for what would occur in the event that the properties were not sold or refinanced in accordance with the Deed. Clause 4.2 of the Deed provided that after the expiry of the Borrower Sale Period, and if there was no proposal for sale, actual sale or repayment of the sums required by the Deed, then Mr and Mrs Poole were obliged to deliver up vacant possession of the security properties on a date which was 14 days after the expiry of the Borrower Sale Period. This meant Hargraves was entitled to vacant possession on or about 24 November 2012.
The Deed also further provided that in the circumstances just described, Hargraves would be immediately entitled to file and enforce the Consent Judgment and writs of possession. The Deed provided that Mr and Mrs Poole would refrain from seeking any stay of the Consent Judgment or writs of possession, or disputing Hargraves' right to immediate possession of the properties. Finally the Deed provided that Hargraves would be entitled to take steps to market the properties for sale as mortgagee in possession.
After the consent orders were made in July 2012, the lawyers for the parties corresponded about various of the matters set out in the Deed, and various related matters. There was some dispute about the conduct of Hargraves. One of the matters which was raised in the correspondence was an assertion by the lawyers for Mr and Mrs Poole that the Tamworth Regional Council had, at the direction of, or else the request of, Hargraves, changed the address for rate notices from the address at each of the properties to the business address of Hargraves in Victoria.
It appears that this concern was first drawn to the attention of the lawyers for Hargraves on 31 October 2012 by an email sent at 8.42am. The lawyer for Mr and Mrs Poole wrote to the lawyer for Hargraves the following:
"As you are aware our clients are taking steps to obtain a refinance in respect of the property. During the process of taking steps to obtain unconditional refinance approval, it has come to our client's attention that the records maintained by Tamworth Regional Council in respect of the [nominated property] record your client's office for the address for service for all notices issued by the council".
It went on to say:
"We are instructed to request as a matter of priority that either your office or your client directly contact Tamworth Regional Council and inform the council that Hargraves, as mortgagee, is not in possession of [nominated property] and request that Tamworth Regional Council redirect all correspondence to our clients".
That email was responded to at 11.14 am on 31 October 2012 by the solicitor for Hargraves. The solicitor for Hargraves informed the solicitor for Mr and Mrs Poole that he had contacted the Tamworth Regional Council and informed them of the error of the address on the rates notice, and directed them that the residential address of Mr and Mrs Poole was to be the address for all correspondence. The solicitor for Hargraves noted that his client did not request a change of address of the correspondence from the council, and he noted also that the change of address seemed to have occurred at some point after 20 July 2012. On the same day at 11.28am, the solicitor for Hargraves sent to the solicitor for Mr and Mrs Poole a further email which attached an updated rates notice which correctly recorded Mr and Mrs Poole's address.
It is hard to understand how Tamworth Regional Council would have changed the address for the rates notice to that of Hargraves without being told to do so by Hargraves, or else deriving that information from documents or information provided by Hargraves. It is not necessary for me on this particular issue, namely the address shown on the rates notice, to come to a concluded view because as is apparent from the exchange of email correspondence, the issue dealing with the address was raised, attended to, and finalised in about three hours on 31 October 2012. There is no evidence before me that the incorrect address on the rates notice impacted in any way at all on the capacity of Mr and Mrs Poole to comply with the terms of the Deed of Settlement and Release.
The second matter raised by Mr and Mrs Poole also related to the rates notices. The evidence of Mrs Poole with respect to the Council's internal records of Tamworth Regional Council was that the "screen shot", namely one of the screens available to officers of the Council, when consulting the computer based records dealing with the property of Mr and Mrs Poole located in the Tamworth region, contained the following material:
"Notice-levy run analysis-rateable property-recovery- mortgagee in possession-assessment". (Emphasis added)
This screen shot is available, according to the evidence, only as an internal document within the Council's offices and to its officers. It is contended by Mr and Mrs Poole that the information noting that there was a mortgagee in possession of the Bendemeer land was provided to the Council directly by Hargraves.
I note from the evidence that it appears that the solicitor for Mr and Mrs Poole wrote to the Council on 14 November 2012 noting that the Council records were in error insofar as they recorded that Hargraves were in possession of the property at Bendemeer. Later that day, Ms Rawlins, the solicitor for Mr and Mrs Poole, sent to Mr and Mrs Poole, an email which included as an attachment to it a copy of the screen shot of Tamworth Council. The letter included this sensible advice:
"We would not recommend providing the screen shots to your proposed income financier as you will see that the Council internal records, contains a reference (albeit incorrect) to "mortgagee in possession". We would suggest only providing your proposed incoming financier with the attached updated rates notice".
There is no reason to think, and the evidence does not suggest, that Mr and Mrs Poole provided a copy of the screen shot to any proposed financier or anybody with whom they were dealing. To be fair, Mr and Mrs Poole did not suggest that this information had directly come to the attention of any incoming financier. However, Mr and Mrs Poole submitted that the information available to the officers of the Tamworth Regional Council that there was a mortgagee in possession of the Bendemeer property, must have come from Hargraves and therefore, since Clause 13.11 of the Deed of Settlement and Release provided that "each party must do or cause to be done all things necessary or reasonably desirable to give full effect to this deed and the transactions contemplated by it (including but not limited to, the execution of documents)", there had been a clear breach by Hargraves of that clause.
It was submitted by Mr and Mrs Poole that given that Tamworth is a relatively small community, that matters which should remain confidential do not always, by virtue of the nature of the community, remain confidential. In other words Mr and Mrs Poole submitted that I should be persuaded that, by reason of this notation on the Council records, that, in effect, "the word got out" in Tamworth and surrounding districts, that Mr and Mrs Poole were in financial trouble, there was a mortgagee in possession of their principal property, and accordingly their opportunity to sell their properties at a reasonable market value, or else refinance them, had been adversely affected, if not completely lost.
Hargraves denied in their evidence before me that they had informed the Council that they were the mortgagee in possession, nor that they had informed the Council to adjust their records accordingly. Hargraves pointed to the fact that others in the Tamworth community knew from at least early April 2012, that Hargraves had an entitlement to possession of the properties. That submission was based upon the fact of the default judgment having been issued on 1 March 2012, whereupon arrangements had been made with the Sheriff's Office to schedule an eviction in April and May 2012. Hargraves accepted before me that it had provided a copy of the default judgment to the Council in March 2012.
Having regard to the events which occurred in March and early April 2012, including the provision of the default judgment by Hargraves, I think it likely that an unknown Council officer took the view that the Council records should contain the notation "mortgagee in possession" and subsequently inserted it into the Council's internal records. I am not satisfied that they were directly requested to do that by Hargraves nor am I satisfied on the evidence that there was any well known procedure of local councils, including the Tamworth Regional Council, to do that.
I understand and respect the concern expressed by Mr and Mrs Poole that the recording of such information in the Council records in a relatively small community may well not remain confidential and that information, or a derivative of it, would make its way into the general community. However, I note that there was at least one, if not more, other possible sources for information of that kind to make its way into the general community. There was the staff of the Sheriff's Office, and as well there was the fact that notices of eviction had been despatched, and no doubt delivery arrangements made to give effect to those notices.
It is simply not open on the evidence before this Court for me to conclude that to the extent that it became known in the Tamworth and adjoining rural communities that Mr and Mrs Poole's properties were for sale and that that sale related to their difficulty in meeting their financier's requirements, or else that the financier was exercising its powers as mortgagee in possession to effect the sale of the property, the spread of this information can be directly attributable to Hargraves. Nor is there any evidence which would enable me to conclude that Hargraves provided the Council with the information for that purpose.
It follows that, as a matter of fact, I am not persuaded that there has been any breach of clause 13.11 of the Deed in this respect.
The third matter which Mr and Mrs Poole drew to attention was that during the Borrower Sale Period, a request had been made to the lawyers for Hargraves, or Hargraves itself, for a statement of the moneys outstanding under the loans and, hence, the payout figures of the mortgages.
Provision of a letter on Hargraves letterhead setting out the payout figure for the mortgage is something which is commonly required for the purpose of providing that information to intending incoming financiers. I am satisfied that the first request made to Hargraves to provide such a payout figure was on 9 November 2012. That request was made by email from Mr and Mrs Poole's then lawyer, to Hargraves.
The request was complied with on the day it was received, Hargraves sent, electronically, a letter which detailed the pay-out figure, the interest cost on the pay out figure, and noting the day from which the calculation was to be made. That letter was headed "re: Default on loan." The letter was provided at 5.23pm on Friday 9 November.
At 9.27pm on the same night, Ms Rawlins, the solicitor for Mr and Mrs Poole, sent an email to Hargraves' solicitor in the following terms,
"Thank you for providing us with the attached letter setting out the indicative mortgage debt owing to Hargraves as at 8 November 2012. We note that the attached letter contains the heading 'default on loan.' As previously discussed, our clients require confirmation of the indicative pay-out figure owing to Hargraves under the deed to be provided by our client to their proposed incoming financier. References to default will obviously not assist our clients in securing unconditional refinance. Accordingly, kindly provide us with an amended letter removing the heading reference to default. Please provide us with this amending letter as a matter of priority."
At 11.48am on the next business day, which was Monday 12 November 2012, Hargraves sent to Mr and Mrs Poole's solicitor a corrected letter, which removed the words "default on loan" and inserted the words "Poole loan pay-out sum."
There is no material in evidence from which I can conclude that the short space of time from 9.27pm on one business day to 11.48am on the following business day, which it took for Hargraves to deal with the request made by Mr and Mrs Poole's solicitors, in any way prevented Mr and Mrs Poole from complying with their obligations under the Deed.
On 9 December 2012, in the light of all that had transpired between the parties, including some of the disagreements to which I have referred, at 12.50pm by email, the solicitor for Hargraves made an offer to Mr and Mrs Poole, the effect of which was to provide for the extension of time under the original Deed of Settlement and Release within which the properties could be sold and upon the basis of that extension of time and undertaking of various other matters to which I will come, Hargraves would forebear from taking any enforcement action until 10 December 2012 to enable Mr and Mrs Poole to have further time to sell or refinance the various properties.
In short, the agreement proposed on 9 November 2012 was to provide an extension of time to the agreement originally entered into in July. Included in that extension of time was that Mr and Mrs Poole would release Hargraves from any claim or rights which they may have against Hargraves whatsoever "in particular any claim relating to the change of address to the security properties with the respective councils." That offer of an agreement was accepted by email at 3.42pm on 9 November. Accordingly, the terms of the original deed were varied so that, in effect, Mr and Mrs Poole had until 10 December to repay the various monies owed, including interest, or else to have effected a settlement of the sale of the various properties.
Hargraves forbore from taking enforcement action until that time and the Pooles agreed that if they could not repay the outstanding monies or sell the properties they would deliver up vacant possession of the properties on 10 December 2012.
DISCERNMENT
It is against this background that I considered the arguments advanced by Mr and Mrs Poole in support of the notice of motion which sought a stay of the consent judgment and a stay of the writs of possession.
Mr and Mrs Poole submitted that there were a number of reasons why such a stay should be granted and the orders made. The first was that Hargraves had been in breach of the Deed and as a consequence the Pooles had not had the opportunity of the 120 day sale period without interruption. It was put that the issue about the change of address on the rate notices and the issue about the recording of the phrase "mortgagee in possession" had constituted breaches by Hargraves of the Deed and either or both would justify a stay, so that the 120 day Borrower Sale Period would, in effect, commence again.
In the course of my factual review of the matters before the Court, enough has been said to indicate that I do not accept Mr and Mrs Poole's submissions that the change of address or the recording of the phrase "mortgagee in possession" has been shown to be a breach of the agreement, nor that the consequences which Mr and Mrs Poole feared had flowed from the provision of that information have been demonstrated to have in fact flowed from it. Nor have I been persuaded on the evidence before me that the information has been demonstrated to have had any adverse effect on the marketing or sale of their land.
The next matter which the Pooles relied upon was the tardy provision of information about the pay-out figure on the loan combined with the provision of the positively disadvantageous information on the pay-out letter which recorded that Mr and Mrs Poole were in default. As I have said, the provision of the heading "Default on Loan" which was, in truth, a correct statement, but which I recognise may have worked to the disadvantage of Mr and Mrs Poole was corrected on the following business day within a few hours of the request having been made. No evidence has been proffered that that period of time adversely impacted upon the capacity of Mr and Mrs Poole to refinance their properties.
An issue arose as to whether there had been a tardy provision of that information. Mr and Mrs Poole asserted that they had requested the information on many occasions. Hargraves denied that and pointed to the evidence before Court which it said enabled a conclusion that there had only been one request for the information.
The evidence before this Court does not enable me to conclude that there had been any requests for that information prior to the exchange of emails on 9 November to which I have earlier referred. I have not been satisfied that any adverse effect has flowed from the content of the heading of the letter of 9 November about the pay-out figure and I am not satisfied that, in any event, such event or the absence of it or the delay made any difference.
Mr and Mrs Poole also relied upon negotiations and proposals which they had been engaged upon to sell the property or lease the property in a way which enabled them to obtain what they perceived as real value from the zoning of their property at Bendemeer as being suitable for development of a wind farm. There is material before the Court indicating that negotiations have been held with an interested party and that there was some prospect of an agreement being reached to develop a part at least of the Bendemeer property as a wind farm. It seems, at least in the assessment of Mr and Mrs Poole, that the development of a wind farm on the property at Bendemeer would provide a tangible and real return on their investment and perhaps even raise sufficient money to address the entirety of the debt owed to Hargraves.
In short, based on that ground, Mr and Mrs Poole submit that the Court should exercise its discretion to stay the writs of possession for a sufficient period to enable Mr and Mrs Poole to conclude their dealings with respect to development of their property as a wind farm and enter into arrangements satisfactory to Hargraves to pay the debt. Hargraves submits that the Court would not grant any further stay and relies essentially upon the history which I have at some length outlined. In short, Hargraves says that there have been more than adequate periods of time for Mr and Mrs Poole to address the outstanding debts, to enter into such arrangements by way of sale of property or refinance for use of the property as wind farms as a method to ensuring repayment.
Hargraves submits that having regard to the fact there has been a farm debt mediation, a further negotiated agreement in July of this year when Mr and Mrs Poole had the benefit of lawyers, an extension of that agreement on 9 November 2012, each of which contemplated that possession would be given over to Hargraves in the event that repayments were not made, it is simply too late for Mr and Mrs Poole to come to Court and attempt, without good reason, to interrupt the parties agreement.
I should also add that there was evidence before me that, at least with respect to one of the town lots in Coonabarabran that it was likely that a contract would be exchanged in the very near future, however the value of that lot does not and is not expected to do anything more than make a small reduction of significant sums that are owed by Mr and Mrs Poole to Hargraves. Of itself, the putative contract for that block does not affect the considerations I have to engage in.
When a Court comes to grant a stay to parties of orders which have been made, the Court has to exercise that power, having regard to the interests of justice. The interests of justice are not one-sided. The Court must have regard to the interests of all of the parties to the litigation before it and determine what is fair and reasonable and in the interests of justice. It is always a matter of significant regret that Courts are confronted at the very last moment by requests for stays of this kind. On the one hand, Mr and Mrs Poole have owned their properties for a very long time. They have farmed them and they have used them productively, but to do so it was necessary for them to borrow money.
Hargraves on the other hand are in the business of lending money for an appropriate return by way of interest. They secure such loans by taking mortgages over property. Their legal rights are, when loans are in default, to obtain possession of the property. These are the balancing considerations which the Court must take into account.
It seems to me to be of particular importance in this case that the Court is not being confronted with a request for a stay of execution, as it were, for the first time. After all, the parties negotiated and reached some form of agreement in 2010 after there had been default for some period. In 2012, the Court was asked to make orders staying writs of possession because Mr and Mrs Poole were attempting to set aside the Court's default judgment which had been entered in the absence of any defence to the proceedings. The Court gave time to the parties for the hearing of that motion. Stephen Campbell J reserved his judgment upon it. While his Honour was reserved the parties agreed on settlement terms, the effect of which was that Mr and Mrs Poole had a four month period to refinance the loans or sell the properties or enter into arrangements which would have had the effect of repaying the outstanding monies to Hargraves.
The parties agreed at that time in July 2012 that at the end of the four month period, if Mr and Mrs Poole had not succeeded in their undertakings that Hargraves would be entitled to possession of the property. Slightly before that time period elapsed, the parties negotiated a further extension of the time period so that, by the 10th of December 2012, if Mr and Mrs Poole had not repaid the monies to Hargraves, then Hargraves would be entitled to possession of the properties.
It seems to me that in considering whether the interests of justice require the Court to order a stay as sought by Mr and Mrs Poole, I should take into account and place significant weight upon the way in which the parties themselves have approached the matter. The parties themselves agreed in July and then in November that Mr and Mrs Poole should have various periods of time in which to arrange their affairs and if they failed to do so then Hargraves would be entitled take possession of the properties. As I said, Mr and Mrs Poole have not succeeded in demonstrating to me that Hargraves have been in breach of any of their obligations, so I just have to consider now whether Mr and Mrs Poole should be given further time to explore the opportunities presented by a possible agreement with a wind farming enterprise in a way which would allow them to raise the capital necessary to repay Hargraves.
I have not found this an easy decision. Mr and Mrs Poole appeared in person before me and Mrs Poole presented her arguments, if I may say with respect, clearly, fully and with a degree of commonsense which it is rare to see in people in her position. I mean no disrespect to her when I say that one or two of her arguments perhaps lacked a little objectivity, however that is hardly surprising. In the end though, it seems to me that I cannot find that the interests of justice ought permit further time for Mr and Mrs Poole to arrange their affairs. I cannot be satisfied that it is fair, just and reasonable to Hargraves for this Court to interrupt the enforcement of their legal rights and for this Court to interrupt the clear agreements reached by the parties at a time when they were each advised by solicitors.
The wind farm proposals advanced before me by Mr and Mrs Poole are in my assessment nothing more than prospects. There is little definite about them. There is little certain about them. There is certainly no material which suggests that by an identified date there will be a sufficient rearrangement of their legal affairs that would give the prospect of a payment out to Hargraves of their debt.
In those circumstances I am not persuaded that I should make the orders sought by Mr and Mrs Poole to stay the writs of possession or to stay the consent judgment and I have come to the view that their notice of motion, which was filed on 3 December 2012, should be dismissed with costs.
ORDERS
I make the following orders:
(1) Notice of Motion filed 3 December 2012 is dismissed.
(2) Defendants to pay the plaintiff's costs.
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Decision last updated: 15 January 2013
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