Hargraves Secured Investments Pty Limited v Sharpe

[2013] NSWSC 1456

Supreme Court

New South Wales

Medium Neutral Citation:

Hargraves Secured Investments Pty Limited v Sharpe [2013] NSWSC 1456

Hearing dates:

21 August 2013

Decision date:

21 August 2013

Jurisdiction:

Common Law

Before:

Adams J

Decision:

1. I order that with the exception of an application for leave to appeal to the Court of Appeal in relation to the judgment of Harrison J of 13 May 2013 no application in relation to the proceedings against him by the defendant is to be listed for hearing without first the leave of a Judge of the Court being granted, such leave being determined on the papers.

2. Notice of motion is dismissed with costs.

3. I assess the amount of costs of and incidental to the hearing of the present notice of motion at $4000 and order that it be paid within 21 days of the date hereof.

Catchwords:

MORTGAGES - possession - application for an injunction restraining the respondent from taking enforcement action under its registered mortgage - issues already determined

PRACTICE AND PROCEDURE - unmeritorious multiple notices of motion - applicant on own admission unable to meet costs orders past and future - further notices of motion not to be filed without leave

Legislation Cited:

Farm Debt Mediation Act 1994

Cases Cited:

Hargraves Secured Investments Limited v Sharpe [2013] NSWSC 1151
Hargraves Secured Investments Limited v Sharpe [2013] NSWSC 940
Hargraves Secured Investments Limited v Sharpe [2013] NSWSC 539
Hargraves Secured Investments Limited v Sharpe [2013] NSWSC 177
Hargraves Secured Investments Limited v Sharpe [2012] NSWSC 1519

Category:

Interlocutory applications

Parties:

Hargraves Secured Investments Limited (Plaintiff)
David George Sharpe (Defendant)

Representation:

Counsel:
Solicitors:
Hargraves Solicitors (Plaintiff)
Self-represented (Defendant)

File Number(s):

2012/41764

ex tempore Judgment

1. This is a notice of motion filed by Mr Sharpe seeking interim relief in substance amounting to an injunction restraining the respondent from taking enforcement action under its registered mortgage in respect of two properties, one in Dorrigo and one at what is usefully called Campbells Hill. This dispute has been the subject of numerous applications by the applicant and I do not propose to set out the course of litigation. However, the following judgments are relevant: Hargraves Secured Investments Limited v Sharpe [2013] NSWSC 1151; [2013] NSWSC 940; [2013] NSWSC 539; [2013] NSWSC 177; and [2012] NSWSC 1519. One way or another, so far as the property in Dorrigo is concerned, the matters upon which the applicant presently relies were all either considered by, or could have been raised by, the applicant for the purposes of obtaining the orders variously sought. In particular, the applicant continues to maintain that the Farm Debt Mediation Act 1994 applies to prevent the action being taken by the respondent, a matter which was determined by Harrison J on 13 May 2013: see Hargraves SecuredInvestments v Sharpe [2013] NSWSC 539.

1. Mr Sharpe has informed me that he has appealed from that judgment but for present purposes the matter, as it seems to me, is closed. For what it is worth, at all events, I am of the view that Harrison J's conclusion on this point was plainly correct.

1. So far as the Dorrigo property is concerned, Mr Sharpe referred to a new matter, namely that on 8 August 2013 an amount of $1494.60 was paid to the Office of the Sheriff, he submits, for payment of the debt which when added to the deposit is the value of the property of which the respondent had seized possession. This is not a basis for the conclusion that the debt is paid. Even if it stood alone, that valuation of the property is not agreed and is otherwise unknown. In this regard I should mention that the only evidence of valuation (which is no longer current) was that provided by the respondent in February and July 2013 as to both properties showing the sum of about $1.8 million. This is significantly less than the claimed debt. I should mention, for fairness, that it is also very much less than the value claimed by Mr Sharpe for the property, which is in the vicinity of $30 million.

1. Accordingly, there is no basis for accepting that the debt has been paid by tender or any other mode. Mr Sharpe submits additionally that, since the matter was heard by me on 6 August 2013, he has identified a number of financiers who have indicated at least a preparedness to consider making advances on the security of the property which would enable the debt to be paid out. It is enough to say that those indications go no further at this stage than expressions of interest. There is no evidence of any likelihood that any such refinancing will be available, although Mr Sharpe believes that it will be if he has sufficient time to provide the necessary information. The open ended character of this proposal is another reason why it cannot provide a basis for the interlocutory relief sought.

1. Further objections are taken to the procedure adopted for executing the writ or writs that have been issued in the course of these proceedings. The facts are not without controversy and certainly are not so clear as to suggest that interlocutory relief should be granted to prevent any further action being taken on the writs.

1. Lastly, the applicant seeks an order that the respondent keeps safe and does not dispose of certain property removed from the Campbells Hill premises on 18 July 2013 and from the Dorrigo premises between 1 February 2013 and 12 August 2013. Since that property was at least prima facie lawfully removed and since I am not prepared to grant interlocutory relief in relation to the writs or writ pursuant to which that property was removed, such an order is not appropriate.

1. I should point out that, in relation to all the complaints of the applicant, it may be that if there were breaches of contract or other actionable conduct committed by the respondent that he has his own action or actions in damages should he wish to take them.

1. The notices of motion to which I have referred, filed respectively 23 November 2011, 28 February 2013, 4 April 2013, 7 May 2013, 5 July 2013, and 2 August 2013, have all resulted in dismissal or dismissal and orders for costs, none of which have been paid and which, it is evident, the applicant is not in a position to pay on his own admission as to his financial affairs. At the same time, dealing with those applications he has put the defendant to considerable expense. The applications before me, that is that which I disposed of on 6 August 2013 and today, were plainly without merit. It is apparent, as in the earlier case, that I should make an order for costs in favour of the defendant. The defendant submits, however, that given the history of this matter and the repetitious applications before this Court and the inability of the applicant to pay costs that some order should be made that does not put the defendant to the expense of defending further applications for interlocutory relief.

1. Subject to the applicant being able to seek a stay in respect of the judgment of Harrison J from the Court of Appeal, he informs me he is not presently aware of any matter which would enable him to make some further action. In my view, the following course is appropriate.

1. I order that with the exception of an application for leave to appeal to the Court of Appeal in relation to the judgment of Harrison J of 13 May 2013 that no application in relation to the proceedings against him by the defendant is to be listed for hearing without first the leave of a judge of the Court being granted and such leave being determined on the papers.

1. Otherwise, the notice of motion is dismissed with costs. I assess the amount of costs of and incidental to the hearing of the present notice of motion at $4000. I order it to be paid within 21 days of the date hereof.

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Decision last updated: 02 October 2013