Mondous v Canzoneri
[2018] VSC 194
•24 April 2018
| IN THE SUPREME COURT OF VICTORIA AT MELBOURNE | Not Restricted |
COMMERCIAL COURT
S CI 2016 04216
| SOUHAIL MONDOUS AND ORS (according to attached Schedule of Parties) | Plaintiffs |
| v | |
| SEBASTIAN CANZONERI & ORS (according to attached Schedule of Parties) | Defendants |
---
JUDGE: | Digby J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 April 2018 |
DATE OF JUDGMENT: | 24 April 2018 |
CASE MAY BE CITED AS: | Mondous v Canzoneri |
MEDIUM NEUTRAL CITATION: | [2018] VSC 194 |
---
PRACTICE AND PROCEDURE – Application to vary an undertaking – Discretionary considerations – Change of material circumstances – Adequacy of security.
PRACTICE AND PROCEDURE – Application to amend – Amendment without real prospect of success – Pleading effecting an affirmation of contract thereby precluding viability of leading repudiation and termination.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr C Caleo QC Mr J Korman | Belleli King & Associates |
| For the Defendants | Mr M A Robins QC Mr A R Morrison | Sinisgalli Foster Legal |
HIS HONOUR:
By Summons dated 5 April 2018, the defendants to this proceeding urgently seek leave to vary undertakings given to this Court on 3 November 2016 and also seek leave to file and serve a Further Amended Defence to Amended Statement of Claim and a Second Further Amended Counterclaim.[1]
[1]Defendants’ Summons, 5 April 2018; CB1.
In the underlying proceedings, the plaintiffs claim a principal sum allegedly owing on seventeen loans advanced by them to the first, second and third defendants (the defendants) between 5 October 2001 and 9 October 2014. The precise amount of the principal and the interest is an issue for determination at trial.
In October 2016, the plaintiffs approached the Court seeking Mareva relief over the second defendant’s units in what the parties refer to as the Wallan Estate Unit Trust and the Update Unit Trust and the third defendant’s interest in the land comprised in Certificate of Title Volume 10254 Folio 071 (the Truganina Land).[2]
[2]Affidavit of David Rewell, 16 April 2016, [28]; CB641.
The Truganina Land is the subject of a Contract of Sale executed on 27 April 2015 and due to settle on 27 April 2018 (the Settlement),[3] hence the urgency associated with this application.
[3]Affidavit of Sebastian Canzoneri, 4 April 2018, [7]–[8]; CB436.
The Undertaking
On 3 November 2016, in the context of the Mareva relief sought by the plaintiffs, the defendants gave an undertaking to the Court that they would not deal with, dispose of, or further encumber, inter alia, the Truganina Land, subject to effecting a contemplated refinancing arrangement (the Undertaking).[4]
[4]Orders of Justice Almond made 3 November 2016.
In this application, the defendants seek to vary the undertaking to exclude the Truganina Land to facilitate settlement of the Contract of Sale of 27 April 2015 and that save as to certain specific payments of principal and interest the total sum of $1,097,919.45 to the fifth plaintiff, the proceeds of sale of the Truganina Land be released to the third defendant with undertakings that the first second and third defendants will not deal with, dispose of, or further encumber, any of the units in the Update Unit Trust or the Wallan Estate Unit Trust.
The plaintiffs resist such a variation. Save as outlined above, the proposed variation would leave the funds received from the Settlement unencumbered and available to the defendants.
In support of their application, the defendants submit:
(a) the proceeding has not progressed expeditiously which has frustrated the defendants’ expectation that the Truganina Land would be unencumbered by the time settlement occurred on 27 April 2018;[5]
[5]Defendants’ Submissions, 17 April 2018, [5].
(b) the plaintiffs’ calculations of their asserted claims are ‘crude’, inaccurate and substantially too high;[6]
(c) there is sufficient equity in the remaining assets subject to the undertaking to satisfy the ‘high water mark’ of the plaintiffs’ claim.
In these respects the defendants submit that ‘the circumstances have changed since the undertakings were given on 3 November 2016’.[7]
[6]Ibid [7].
[7]Ibid [4].
The plaintiffs, by overarching initial submissions, emphasise that they have been given insufficient time to respond to the subject application, that the salient discretionary factors and the value of the asset in question support an adjournment, and that issues raised by the defendants transgress the underlying merits of the claim to be determined at trial.[8]
[8]Plaintiffs’ Submissions, 17 April 2018, [7], [21]-[24].
During the application on 18 April 2018 the plaintiffs however elected to press on with their response to the defendants’ variation application. This was a result of Mr Robins QC, Counsel for the defendants, electing not to press any reliance on recently filed documents in relation to the Update Unit Trust and the Wallan Estate Unit Trust.[9]
[9]T1.15–2.3.
Ultimately, the plaintiffs submit that what falls to be determined in this application is whether a new fact or change of circumstances renders enforcement of the existing undertaking unjust.[10] The plaintiffs submit that the defendants have not identified any such fact or change of circumstances.[11]
[10]Plaintiffs’ Submissions [18]; Hall v Mercury Information Technology (South Australia) Pty Ltd [2003] FCA 645 [6].
[11]T56.
Legal Principles
The central point of difference between the parties is the extent and proper exercise of the Court’s discretion to vary an undertaking.
In oral submissions Mr Caleo QC, Counsel for the plaintiffs, emphasised the need for the defendants making the application to point to a new fact or change of circumstances so as to justify the exercise of the court’s discretion to vary or discharge the undertaking.[12] This is consistent with the approach urged upon the Court in the plaintiffs’ outline of written submissions and their reliance on Hall v Mercury Information Technology (South Australia) Pty Ltd[13] (as considered below).
[12]T56.
[13][2003] FCA 645.
In response Mr Robins QC, Counsel for the defendants, submitted the Court had a wide ‘equitable’ discretion with respect to undertakings that should not be tempered by such an inflexible criterion.[14] The relevant discretion was said not to be tempered by ‘rigid rules’ whether in equity or as a matter of practice and procedure.[15] Instead, it was said that the Court must do justice to the parties, ‘meet the arguments on their merits’ and in so doing may take a broader more flexible approach not strictured by a qualifying requirement to identify new facts or changed circumstances. The defendants however also contend that relevant circumstances have changed since November 2016.[16]
[14]T90.
[15]Ibid.
[16]T91.
In Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc,[17] a majority of the High Court of Australia (the High Court) explained the Court’s power to vary an undertaking in the following terms:
Considerable argument was directed to the question whether a court has power, otherwise than in the case of mistake operative at the time of giving it to release a party from an undertaking, at least in the absence of the consent of the other party. But in our opinion a court undoubtedly has such a power. Just as an interlocutory injunction continues "until further order", so must an interlocutory order based on an undertaking. A court must remain in control of its interlocutory orders. A further order will be appropriate whenever, inter alia, new facts come into existence or are discovered which render its enforcement unjust.[18]
[17](1981) 148 CLR 170.
[18]Ibid 177-78.
Similar observations were made by Stone J of the Federal Court of Australia in Hall v Mercury Information Technology (South Australia) Pty Ltd:[19]
It is clear that the Court has power to release a party from an undertaking given where there was no mistake operative at the time the undertaking was given. However, the onus of proof is on the party seeking a release or variation of such an undertaking to establish by evidence that new facts have been discovered or have come into existence that would render the continued enforcement of the undertaking unjust.[20]
[19][2003] FCA 645.
[20]Ibid [6].
Courts have the power to make interlocutory orders to facilitate the just and expeditious resolution of disputes. But the power should not be exercised according to idiosyncratic conceptions of what is ‘just’. The passage quoted above identifies a clear criterion, namely the emergence of new facts, which would render enforcement of the original undertaking unjust.
Even so, the Court’s discretion in respect of undertakings is not rigidly confined. Mr Robins QC emphasized the analogical significance of an undertaking to an injunction. He pointed out, correctly in my view, that the Court’s equitable jurisdiction should not be unaccommodating of circumstances that do not neatly reflect what has been decided previously in relation to an application to vary or discharge undertakings.[21] Accordingly, it remains open to the Court to reason that enforcement of an undertaking would be unjust in the circumstances and to vary an undertaking on that basis. In this regard I do not consider there to be any rigid or confined rule or test in respect of the exercise of the Court’s discretion to variation or permit the withdrawal of an undertaking.
[21]T90.
The High Court has also observed that the ‘balance of convenience’ is a material consideration conditioned by the nature of the undertaking and the conduct to which it is directed, as well as the circumstances in which it is given.[22] Significantly, in this case, whether the undertaking should be varied does not fall to be determined by the same considerations applicable to freezing orders and Mareva injunctions.
[22](1981) 148 CLR 170, 180.
Analysis of the Application
Expeditious Progress of the Proceeding
In his affidavit sworn 4 April 2018, Sebastian Canzoneri deposes that:
(a) the settlement of the Truganina Land was contemplated before providing the undertaking;
(b) he was prepared to give the undertaking which is in controversy in October 2016, particularly over the Truganina Land, because he considered that doing so would not cause prejudice to his interests; and
(c) the basis upon which he formed that view was the expectation the dispute would be resolved within eighteen months.[23]
[23]Affidavit of Sebastian Canzoneri, 4 April 2018, [15]–[17]; CB438.
The latter has not occurred. The defendants observe that the resolution of this proceeding has not been expeditious. Mr Canzoneri further observes that the continued encumbrance of the Truganina Land via the undertaking will inhibit his commercial dealings as a property developer.[24]
[24]Ibid [19]; CB439.
Value of the Claim
The defendants’ evidence was that a significant factor in their decision to proffer the undertaking of 3 November 2016 was the likely quantum of the plaintiffs’ claims.[25]
[25]Affidavit of Sebastian Canzoneri, 2 November 2016, including at [3] and [4]; CB362.
The defendants made extensive submissions that the plaintiffs’ claims prior to and at October 2016 overstated the quantum of those claims. In making their application to vary undertakings, the defendants submit that:
(a) The plaintiffs’ most recent affidavit material mischaracterises the value of the claim. A deduction of over one million dollars should be made from the claimed security because:
(i) the Rewell affidavit calculates ‘variously constituted loans’ as totalling $5,262,915.41. However, the Statement of Claim dated 26 November 2016 alleges that the loans in question amount to $5,171,875.57. There is a discrepancy of $91,039.84;
(ii) an earlier asserted outstanding amount in respect of a refund of a loan from Australand for the Wallan Trust in the sum of $827,975 is no longer pursued in the Statement of Claim;
(iii) an outstanding amount for capital contributions in respect of expenses for the Update Trust in the sum of being $83,397 is no longer pursued in the Statement of Claim.
(b) Subsequent to October 2016, loan repayments totalling $2,780,000 have been made requiring a corresponding deduction from the claimed security:
(i) the sum of $2,000,000 advanced on 1 August 2012 was attested in a Deed between Casdar and Citek and a deed between Frontlink and Citek;[26]
[26]Defendants’ Submissions, [24]–[26].
(ii) the sum of $780,000 advanced on 17 October 2013 was attested in a Deed between Frontlink and Renfro.[27]
[27]Ibid.
(c) The recovery of certain loans totalling $1,710,481.91 is arguably barred by reason of s 24(3) of the Limitation of Actions Act 1958 (Vic) requiring a corresponding deduction from the claimed security:
(i) the loans alleged in paragraphs [7]–[16] and [18] of the plaintiffs’ Statement of Claim, all of which were made on or prior to 28 November 2010, total $1,710.481.91;
(ii) since the proceeding to recover the loans was commenced by Writ filed 28 November 2016, the defendants submit ‘all alleged loans that were advanced on or prior to 28 November 2010 are statute barred’.
(d) The plaintiffs’ submissions on interest (namely that a term was implied into each loan agreement that ‘a reasonable commercial rate of interest would be charged’, or that interest on the oral loan agreements was payable pursuant to s 58(1) of the Supreme Court Act 1986 (Vic)) are misconceived:
(i) the interest said, incorrectly, to be implied into the loan agreements represents $3,025,863.62 of the plaintiffs’ claim up to 31 October 2016;
(ii) the maximum amount of penalty interest payable under the s 58(1) of the Supreme Court Act 1986 (Vic) would be $1,871,971.19 up to 31 October 2016, rather than the claimed $3,025.863.62.
On the defendants’ submission, the likely upper extent of the plaintiffs’ claim is $5,171,875.57. It is this amount at best which is relevant to any security to be provided over assets subject to the undertaking.
Sufficiency of the Equity
Further, the defendants make the following observations with respect to the value of the assets, other than the Truganina Land, which are subject to the undertaking:
(a) the units of the second defendant in the Update Unit Trust are now valued at approximately $2,350,000.[28] This represents an increase of approximately $1.2 million from the value assigned at the time the plaintiffs sought Mareva relief;
[28]415 McGregor Road, Pakenham, being the property held by the Update Unit Trust, was valued at $4,700,000 on 5 April 2018: CB587; Defendants’ Submissions [43]. The second defendant Dapto has a 50% share in the Update Unit Trust: CB198.
(b) the units of the second defendant in the Wallan Estate Unit Trust, which holds unsold land at Wallara Waters, may increase in value following approval of a residential development plan.[29] The defendants claim this is a ‘huge actual, or at the very least potentially huge, further value’;[30]
(c) in August or September 2016, the parties agreed that the second defendant’s units in the Wallan Estate Trust and the Update Unit Trust would be sold. The defendants claim the agreed purchase price was $5,168,000.[31] The plaintiffs claim that the purchase price was $5,004,054;[32]
(d) the second defendant is entitled to an unpaid beneficial entitlement recorded in the accounts of the Wallan Estate Unit Trust.[33] I note that the defendants have not been able to adduce evidence as to the precise value of this entitlement.
[29]CB504–548.
[30]Defendants’ Submissions, [43]; The second defendant Dapto has a 25% share in the Wallan Estate Unit Trust: CB198.
[31]Ibid [37].
[32]Ibid [38].
[33]Ibid [46].
For these reasons, the defendants submit that ‘there is more than sufficient equity’ in the unit trusts alone, without securing the Truganina Land, to satisfy ‘even the most optimistic valuation of the plaintiffs’ claim’.[34]
[34]Ibid [46].
Decision
To the extent that the defendants’ undertaking encumbers their dealing in the Truganina Land and would attach to the proceeds of sale of that land, I consider that the defendants have shown grounds for a release and variation. In my view, enforcement of the undertaking as it presently stands would be unjust in light of the following factors and considerations:
(a) when the defendants gave the undertaking on 3 November 2016, I am satisfied the defendants expected the proceedings would be finalised expeditiously. That expectation has been frustrated principally by the postponement of the trial of this matter;
(b) I am also satisfied that the undertakings of 3 November 2016 were to a material degree predicated upon the defendants then assessment of the quantum of the plaintiffs’ arguable claims; for the reasons outlined above the arguable quantum of the plaintiffs’ claims have significantly depreciated since November 2016;
(c) I am satisfied that the second defendant’s units in the two relevant landholding trusts namely the Update Unit Trust and the Wallan Estate Unit Trust are likely to have a value which represents sufficient unencumbered equity to satisfy the approximate potential judgment that may be entered in the plaintiff’s favour in this proceeding, taking into account the matters referred to above, including in relation to the plaintiffs’ claims. I have reached this conclusion principally upon the following bases:
(iii) the agreement struck in August or September 2016 according to which the second defendant’s units in the Wallan Estate Unit Trust and Update Unit Trust would be sold for approximately $5 million;
(iv)the independent valuation of the unsold land in Pakenham held by the Update Unit Trust;
(v) that the likely upper ambit of the plaintiffs’ claim is approximately $5 million;
(d) I am satisfied that the balance of convenience in this matter favours the defendants.
(e) In his affidavit sworn 2 November 2016, upon giving the undertaking, Mr Canzoneri makes clear he was anxious to have the proceeding finalised as soon as possible to preserve his commercial position. Mr Canzoneri, via the defendant companies, runs an active property development business. If the undertaking is varied in the defendants’ favour, I accept that the funds received from settlement of the Truganina Land would principally be used to repay creditors, while denial of the funds would deprive his business of working capital;[35]
(f) I am satisfied that in these respects the defendants are likely to suffer prejudice if the subject undertakings are not varied as sought by the defendants;
(g) I also note that the balance of convenience was not pressed in the plaintiffs’ written or oral submissions as a factor favouring the plaintiffs’ position or weakening the defendants’ position on this application.[36]
[35]Ibid [52].
[36]T52.
I am also satisfied that there is no present basis upon which I could be presently satisfied that the defendants have attempted, or are attempting, to defray their assets and defeat any prospective judgment in favour of the plaintiffs.[37]
[37]Affidavit of David Rewell, 16 October 2016, [28]; CB641.
For these reasons, I would grant leave to the defendants to vary the undertakings given on 3 November 2016 as proposed in the defendants’ draft orders attached to their submissions dated 17 April 2018, subject to any further submissions as to the most appropriate form of those orders.
The Application to Amend
By Summons dated 5 April 2018, the defendants also make an application to amend their pleadings. Specifically, the defendants seek leave to file and serve a Further Amended Defence to Amended Statement of Claim and a Second Further Amended Counterclaim.
In their Amended Defence to Amended Statement of Claim and Second Further Amended Counterclaim of 24 November 2017, the defendants sought specific performance of a contract, known as the ‘Wallan/Update Unit Sale Agreement’, under which Mr Canzoneri agreed to sell to Mr Mondous the second defendant’s interests in the Wallan Estate Unit Trust and the Update Unit Trust for approximately $5.1 million. The proposed amendments to this pleading allege repudiation of this contract, plead acceptance of that repudiation and claim resultant damages in lieu of performance.
The plaintiffs opposed the application to amend on the basis that the proposed amendments are hopeless and devoid of any real prospect of success because the plaintiffs argue the defendants’ above plea of specific performance affirmed the relevant contract, leaving no room for a claim of termination of the same contract on the basis of repudiatory acts.
By reference to the High Court’s decision in Sargent v ASL Developments Ltd (‘Sargent’),[38] the plaintiffs submitted that the institution of an action for specific performance amounts to an election to affirm, such that the defendants’ right to terminate the contract has been extinguished.[39]
[38](1974) 131 CLR 634.
[39]T75–76.
In Sargent, Mason J observed:
Any discussion of the principles governing the circumstances in which a party's words or conduct may preclude him from exercising a legal right which he possesses is beset with difficulties. They have their origin in the differences to be found in the various doctrines (election, waiver and estoppel) which may come into operation and in the differing concepts which each doctrine has at times been thought to embrace.[40]
[40]Sargant v ASL Developments Ltd (1974) 131 CLR 634, 655.
The Victorian Court of Appeal has stressed the need for caution in concluding that a pleading is so hopeless it should not proceed.[41]
[41]Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158; [34(d)].
Whether the promisee’s conduct is ‘unequivocal’ and amounts to an election is a question of fact contingent on circumstances of each case.[42] Whether the defendants have forgone their claims of breach and right to damages is not, in my view, a hopeless pleading devoid of any real prospect of success. The question is one likely to be informed by factual issues and is therefore suitable for determination at trial.
[42]Deaves v CML Fire and General Insurance Co Ltd (1979) 143 CLR 24, 54.
I also observe that the defendants’ pleading in relation to repudiation is in respect of continuing repudiatory conduct since October 2016 and therefore it may ultimately be arguable that acts of repudiation subsequent to the earlier introduction of the plea of specific performance are found to be material.
Further breaches and instances of repudiatory conduct are also likely able to engage the right to make a new election.[43]
[43]Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632, 645.
It is sufficiently clear therefore that it remains open on the defendants’ proposed amended case to rely upon acts of repudiation after the point in time when it introduced the earlier claim for specific performance, thereby likely negating any argument that an earlier plea of specific performance precludes reliance on such repudiation.
I also observe that the defendants plea in relation to specific performance was always conditional.[44]
[44]Further Amended Counterclaims, Prayer for Relief “I”.
Accordingly, the subject proposed amendments, particularly in my view the conditional aspect of the plea impugned, also renders it arguable as to whether the defendants have ever unequivocally pleaded so as to affirm the subject contract by seeking specific performance.
For the above reasons I do not consider that the proposed amendments are in respect of claims which is so unlikely to succeed that they should not be permitted to be introduced.
I observe the plaintiffs did not raise any other factors that would preclude amendment of the defendants’ pleadings at this stage.
For these reasons, I would grant the defendants leave to file and serve a Further Amended Defence to Amended Statement of Claim and a Second Further Amended Counterclaim in the form proposed.
Orders and Undertakings
I shall order that:
UPON the first, second and third defendants undertaking by their counsel to the Court that until the final determination of this proceeding or further order they will not by themselves, their servants, or their agents, or in any other way whatsoever, in any way deal with, dispose of, or further encumber:
(a)any of the units held by the first respondent in the Update Unit Trust; and
(b)any of the units held by the first respondent in the Wallan Estate Unit Trust.
AND UPON the first, second and third defendants undertaking by their counsel to the Court that upon the settlement of the contract sale of the land comprised in Certificate of Title Volume 10254 Folio 071, between the third defendant and Intrapac Homeleigh Pty Ltd ACN 128 718 025, dated 27 April 2015, they will pay the sum of $1,098,304.11, comprising:
(a)$780,000.00 as principal; and
(b)$318,304.11 as interest calculated at 9% per annum from 17 October 2013 to 27 April 2018, to the fifth plaintiff.
AND UPON the plaintiffs undertaking by their Counsel to abide by any order the Court may make as to damages in case the Court shall hereinafter be of the opinion that the first, second and third defendants shall have sustained any, by reason of this order, which the plaintiffs ought to pay.
1.The first, second and third defendants be given leave to withdraw the following undertaking given on 3 November 2016:
UPON the first and second respondents undertaking by their counsel to the Court and upon their director, Sebastian Canzoneri, undertaking to the Court, that until the final determination of this proceeding or further order they will not by themselves, their servants, or their agents, or in any other way whatsoever, in any way deal with, dispose of, or further encumber:
(a)any of the units held by the first respondent in the Update Unit Trust;
(b)any of the units held by the first respondent in the Wallan Estate Unit Trust; and
(c)the land comprised in Certificate of Title Volume 10254 Folio 071 (“the Truganina Land”) other than in effecting the refinance with Manda Capital Holdings Pty Ltd.
2.The following undertakings given on 3 November 2016 remain unaffected:
AND UPON the first and second respondents and their director, Sebastian Canzoneri, further undertaking that of the monies held by way of deposit for the sale of the Truganina Land, they will not disburse those monies so as to reduce the balance of the said deposit held below the sum of $68,364.02 until further order.
AND UPON the Applicants by their Counsel giving the usual undertakings as to damages.
3.Upon settlement of the sale of the land referred to in Other Matters, the third defendant will pay the sum of $1,997,595 from the proceeds of such sale into the trust account of the defendants’ solicitors, and such sum shall be retained in such trust account until 4.00pm on 4 May 2018 or further order.
4.The defendants and plaintiff by counterclaim have leave to amend the summons filed 5 April 2018 in the form initialled by the Court and placed on the Court file this day.
5.The Registrar of Titles is joined to the proceeding as the sixth defendant by counterclaim and the title to the proceeding is amended accordingly.
6.Leave to the plaintiff by counterclaim to amend the prayer for relief to the Further Amended Counterclaim by adding a new paragraph:
‘MA.The Registrar of Titles is to immediately remove the Notice of Action lodged 21 March 2018 in Dealing No AQ842591Q over the land contained in Certificate of Title Volume 10254 Folio 071, and the Registrar is directed pursuant to s.103(1) of the Transfer of Land Act 1958 to make any amendments to the Register or do any act or make any recordings necessary to give effect to this order.’
7.The time for service of the Amended Summons and of the Second Further Amended Counterclaim upon the Registrar of Titles is expedited to 23 April 2018 nunc pro tunc and service is deemed to have been duly effected by email service at [email protected].
8.The Registrar of Titles is to immediately remove the Notice of Action lodged 21 March 2018 in Dealing No AQ842591Q over the land contained in Certificate of Title Volume 10254 Folio 071, and the Registrar is directed pursuant to s 103(1) of the Transfer of Land Act 1958 to make any amendments to the Register or do any act or make any recordings necessary to give effect to this order.
9.By 4.00pm on 26 April 2018 the defendants / plaintiffs by counterclaim have leave to file and serve a Further Amended Defence to Amended Statement of Claim and Second Further Amended Counterclaim in substantially the form exhibited to the affidavit of Sebastian Canzoneri sworn 4 April 2018.
10.By 4.00pm on 10 May 2018 the plaintiffs / first and third to fifthnamed defendants by counterclaim file and serve any Amended Reply to Defence or Defence to Counterclaim in response to the Further Amended Defence to Amended Statement of Claim and Second Further Amended Counterclaim.
11.The proceeding is listed for further mention on a date to be fixed.
12.Save that there is no order as to costs in respect of the Registrar of Titles, costs are reserved.
13.The parties have liberty to apply.
SCHEDULE OF PARTIES
| S CI 2016 4216 |
BETWEEN
| SOUHAIL MONDOUS | First Plaintiff |
| KAMEEL PTY LTD (ACN 006 636 442) (as Trustee for the Souhail Mondous Family Trust) | Second Plaintiff |
| CASDAR PTY LTD (ACN 005 282 495) (as Trustee for the Viewhill Estate Unit Trust) | Third Plaintiff |
| DECLEAH INVESTMENTS PTY LTD (ACN 100 717 191) | Fourth Plaintiff |
| FRONTLINK PTY LTD (ACN 074 034 496) | Fifth Plaintiff |
| OAKBEE PTY LTD (ACN 006 933 777) (as Trustee for the Natreen Investment Trust) | Sixth Plaintiff |
| RAINN PTY LTD (ACN 101 176 952) (as Trustee for the Rainn Unit Trust) | Seventh Plaintiff |
| PRINCE REMOVAL & STORAGE PTY LTD (ACN 065 148 594) (as Trustee for the PRS Unit Trust) | Eighth Plaintiff |
| S & N SUPER FUND PTY LTD (ACN 116 380 057) (as trustee for the Souhail Mondous Superannuation Fund) | Ninth Plaintiff |
| - and - | |
| SEBASTIAN CANZONERI | First Defendant |
| DAPTO RANGES PTY LTD (ACN 065 214 486) (as trustee for the CSP Wallpak Unit Trust) | Second Defendant |
| CITEK PTY LTD (ACN 100 767 164) (as Trustee for the Caspeda Unit Trust) | Third Defendant |
| RENFRO PTY LTD (ACN 100 615 674) | Fourth Defendant |
| RULINDA INVESTMENTS PTY LTD (ACN 088 744 298) | Fifth Defendant |
| OLIANA FOODS PTY LTD (ACN 140 768 716) | Sixth Defendant |
AND BETWEEN
| DAPTO RANGES PTY LTD (ACN 065 214 486) (as trustee for the CSP Wallpak Unit Trust) | Plaintiff by Counterclaim |
| - and - | |
| VICTOREE PTY LTD (ACN 106 132 334) (as Trustee for the Wallan Estate Unit Trust) | First Defendant by Counterclaim |
| UPDATE PTY LTD (ACN 106 132 245) (as trustee for the Update Unit Trust) | Second Defendant by Counterclaim |
| S & N SUPER FUND PTY LTD (ACN 116 380 057) (as Trustee for the Souhail Mondous Superannuation Fund) | Third Defendant by Counterclaim |
| KAMEEL PTY LTD (ACN 006 636 442) (as Trustee for the Souhail Mondous Family Trust) | Fourth Defendant by Counterclaim |
| SOUHAIL MONDOUS | Fifth Defendant by Counterclaim |
1
5
0