Myers v Aquarell Pty Ltd

[2001] VSC 65

SUPREME COURT OF VICTORIA
PRACTICE COURT	Not Restricted

No. 7957 of 1999

MARIA MYERS	Plaintiff
v.
AQUARELL PTY. LTD. AND OTHERS	Defendants

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 MARCH 2001
DATE OF JUDGMENT:	5 MARCH 2001
CASE MAY BE CITED AS:	MYERS v. AQUARELL PTY. LTD. & ORS.
MEDIUM NEUTRAL CITATION:	[2001] VSC 65

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CATCHWORDS:      Practice and Procedure – Stay of execution of warrant for possession – No justification for stay.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	P. Anastassiou	Norton Gledhill
For the Defendants	C. Mavroudis	Andrew Zita

HIS HONOUR:

1. The first-named defendant to the proceeding, Aquarell Pty Ltd, is the registered proprietor of a property at 59 One Tree Hill Road, Ferny Creek, being the land more particularly described in Certificate of Title Volume 9990 Folio 926.  The second-named defendant, Theodore Nicholas Anthopoulos, is in occupation of the property.

1. By an instrument of mortgage dated 16 July 1998 and registered under the Transfer of Land Act 1958, the first defendant mortgaged the land to the plaintiff, Maria Myers, to secure the repayment of the principal sum of $27,000 which the plaintiff lent to the first defendant on 20 July 1999.

1. The first defendant made no payments of interest or repayment of principal to the plaintiff.  Indeed, on 17 August 1999 the first defendant was placed in liquidation and remains in liquidation to this date.

1. On 17 December 1999 the plaintiff filed a proceeding in the court whereby she sought an order against both defendants for possession of the land.  The first defendant did not file or deliver any defence to the plaintiff's proceeding and on 11 February 2000 judgment in default of defence was entered against it, the judgment being that the plaintiff recover possession of the property.  The second defendant, on the other hand, did file an appearance to the writ and did deliver a defence to the plaintiff's claim.

1. On 25 August 2000 the plaintiff filed a summons in the court seeking summary judgment for possession against the second-named defendant.  That summons came before Master Wheeler and on 22 September 2000 the Master gave judgment in favour of the plaintiff against the second-named defendant, the judgment being that the plaintiff recover possession of the property from the second-named defendant.

1. On 25 September 2000 the second defendant appealed from the Master's order to a judge of the court.  The appeal came on for hearing before Gillard, J. and in a very lengthy judgment his Honour dismissed the appeal from the order of Master Wheeler and affirmed the order that the Master had made. 

1. I should say that there were many issues raised by the second defendant before his Honour, not the least of them being an allegation of fraud.  However, as I say, Gillard, J. in a very lengthy judgment dealt with all matters raised by the second-named defendant and found against him. 

1. On 15 January 2001 the plaintiff issued a warrant of possession out of the court seeking possession of the property.  On 28 February 2001 the defendants filed a summons in the court seeking a stay of the warrant of possession. 

1. It is clear from the affidavit material before the court that the liquidator of Aquarell, that is, the first defendant, has never given his consent to that action being taken on behalf of the first defendant, nor has he appeared to support the application now before the court.

1. As a consequence of the first defendant's failure to repay the mortgage, there is now outstanding pursuant to the mortgage a sum of $34,068 and some 20 cents.  Of more significance, perhaps, is the fact that, according to the plaintiff's costing consultant, the costs which the second defendant is now obliged to pay the plaintiff in respect of the proceeding total $54,471.57.

1. It would be fair to say, I think, from the history of this proceeding, that the second-named defendant has to date done everything he possibly can to prevent the plaintiff recovering repayment of the moneys advanced by her to the first-named defendant.

1. The basis upon which the second defendant now seeks a stay of the proceeding is that he intends to obtain a loan of $285,000 to be utilised as follows.  $230,000 would be used to pay out Citibank Ltd, which holds a first mortgage over the property, $5,000 would be the costs he would be required to pay for establishing the loan, and he would then have a sum of $50,000 for payment of the moneys owed to the plaintiff.  In so far as any further sum is concerned, that is, further sum owed to the plaintiff, he would attend to that by obtaining a second mortgage over the property for a further $30,000.

1. At this point it is important to note that the second defendant is not the registered proprietor of this property, it is the first defendant, and any question of the re-financing of the mortgages given by the first defendant to the plaintiff on the one hand and to Citibank Ltd on the other is something that could only be done by the liquidator of the first defendant.  The second defendant himself has no power to pay out these mortgages and then give a mortgage in the name of the first defendant to the new lender.

1. Having said that, I can see no basis at all for granting any stay of the warrant issued in this case.  The plaintiff has two judgments in this court, one against the first defendant and one against the second-named defendant, entitling her to possession of the property.  The judgment against the second defendant, which is probably the more significant for present purposes, was obtained as long ago as 20 October 2000.  If the second defendant intended to come to any financial arrangement that would enable the plaintiff to be paid out, he had more than adequate time to do so.

1. In my opinion there is no basis for granting any stay of the warrant and the application in that regard is dismissed with costs to be taxed on a solicitor-own client basis.

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