Soueid v Dang

Case •

[2025] NSWSC 674

•

27 June 2025

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: Soueid v Dang [2025] NSWSC 674
Hearing dates: 20 June 2025
Date of orders: 27 June 2025
Decision date: 27 June 2025
Jurisdiction: Equity - Duty List
Before: Williams J
Decision:

See orders at [145].

Catchwords:

CIVIL PROCEDURE — Default judgment — Motion to set aside – where defendant is vendor and plaintiff is purchaser under a contract for sale of land – where default judgment for specific performance of the contract was entered against the defendant on 14 June 2024 – where defendant’s first motion to set aside default judgment dismissed on 6 December 2024 in the absence of any appearance by the defendant – where defendant continued to deal with the property despite being on notice of the Court’s orders requiring specific performance of the sale contract and took other steps to interfere with completion of the sale contract in accordance with those orders – whether defendant asserts a bona fide defence and cross-claim – whether there is an adequate explanation for defendant’s default and delay – prejudice to plaintiff caused by delay – whether an order setting aside default judgment is in interests of justice and consistent with the overriding purpose and objects contained in ss 56-60 of the Civil Procedure Act 2005 (NSW)

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56, 57, 59, 60

Conveyancing Act 1919 (NSW), ss 66S, 66T, 66U

Uniform Civil Procedure Rules 2005 (NSW), r 36.16(2)(b)

Cases Cited:

Ashton v Pratt (2015) 88 NSWLR 281; [2015] NSWCA 12

Bajramovic v Calubaquib [2015] NSWCA 139

Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44

Dai v Zhu [2013] NSWCA 412

Fiorenza v Fiorenza [2024] NSWSC 549

Hoyts Pty Ltd v Spencer (1919) 27 CLR 133; [1919] HCA 64

J & M McNamee Holdings Pty Ltd v Mungerie Vale Pty Ltd t/as Greenwood Group Realtors [2019] NSWCA 283

Pham v Gall (2020) 102 NSWLR 269; [2020] NSWCA 116

Saleh v Romanous (2010) 79 NSWLR 453; [2010] NSWCA 274

Texts Cited:

N/A

Category:Procedural rulings
Parties: Laurie Soueid (Plaintiff/Respondent)
Huynh Bich Thuy Dang (Defendant/Applicant)
Representation:

Counsel:
Mr A Gerard (Plaintiff/Respondent)
Mr N Kirby (Defendant/Applicant)

Solicitors:
Lionheart Lawyers (Plaintiff/Respondent)
EGR Law (Defendant/Applicant)
File Number(s): 2022/180682
Publication restriction: N/A

Judgment

Introduction

  1. These proceedings concern a contract for the sale and purchase of property at 6 Queen Street, Croydon Park, New South Wales, being the land in folio identifier XX/XXX.

  2. The contract was entered into on 2 December 2021 between the plaintiff, Laurie Soueid, as purchaser, and the defendant, Huynh Bich Thuy Dang (also known as Lisa Dang), as vendor.

  3. The contract stipulated a purchase price of $2,400,000 including a deposit of $480,000 and provided for completion three months after the date of the contract.

  4. The plaintiff commenced these proceedings by statement of claim filed on 21 June 2022 seeking an order for specific performance of the contract.

  5. A defence and cross-claim filed by the defendant in July 2022 were struck out in September 2022 with liberty to re-plead.

  6. The defendant then filed a defence and cross-claim on 6 February 2023 seeking orders that the contract for sale of land be rescinded, declared void or set aside, and orders for specific performance of an alleged loan agreement between the plaintiff (as lender) and the defendant (as borrower).

  7. On 14 June 2024, following repeated non-compliance with the Court’s orders for the filing and service of evidence, the defendant’s defence and cross-claim were struck out and default judgment for specific performance was entered against her.

  8. The defendant filed a notice of motion to set aside the default judgment on 15 October 2024, but failed to appear at the hearing of the motion on 6 December 2024. The motion was dismissed.

  9. These reasons concern a further application made by the defendant by notice of motion filed on 4 June 2025 to set aside the default judgment entered on 14 June 2024.

Applicable principles

  1. As the plaintiff acknowledged, r 36.16(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW) confers on the Court a broad discretion to set aside or vary a judgment after it has been entered if the judgment was given in the absence of a party.

  2. The exercise of the discretion requires the Court to make a broad evaluative judgment. In the present case, the considerations informing that judgment are: [1]

    1. Pham v Gall (2020) 102 NSWLR 269; [2020] NSWCA 116 at [110]-[112] (Payne JA, Leeming and McCallum JJA agreeing); J & M McNamee Holdings Pty Ltd v Mungerie Vale Pty Ltd t/as Greenwood Group Realtors [2019] NSWCA 283 at [48]-[52] (Gleeson JA, Brereton JA and Simpson AJA agreeing); Dai v Zhu [2013] NSWCA 412 at [89]-[93] (Sackville AJA, Barrett and Leeming JJA agreeing).

  1. whether the proposed defence, and the proposed cross-claim upon which the defence depends, are shown by the evidence adduced by the defendant on this application as being asserted bona fide and as raising an arguable issue for trial;

  2. whether there is an adequate explanation for the defendant’s default that resulted in the entry of default judgment on 14 June 2024;

  3. the length of the defendant’s delay in seeking to set aside the default judgment, and the adequacy of any explanation for that delay, including her failure to appear at the hearing of her first application to set aside the default judgment on 6 December 2024; and

  4. any prejudice to the plaintiff that will flow from the defendant’s delay in the event that the default judgment is set aside and the matter now proceeds to a contested hearing on its merits.

  1. The central question is whether it is in the interests of justice, and whether it would serve the overriding purpose in s 56 of the Civil Procedure Act 2005 (NSW) and the objects identified in ss 57, 59 and 60 of that Act, for the defendant to now be permitted to defend the proceedings and pursue her cross-claim on the merits, one year after the default judgment was entered and after failing to appear at the hearing of her first application to set it aside. [2]

    2. Ibid.

A bona fide arguable defence and cross-claim?

  1. The defence and cross-claim that the defendant proposes to file if the default judgment is set aside is annexed to the affidavit affirmed by Mr Kelvin Wu, a law clerk employed by the firm of solicitors acting for the defendant in these proceedings, on 19 June 2025.

  2. In the proposed defence, the defendant admits entering into the contract dated 2 December 2021 for the sale to the plaintiff of the property at 6 Queen Street, Croydon Park, for a price of $2,400,000 with a deposit of $480,000 and a completion date three months after the contract date. The defendant pleads that she rescinded the sale contract on 24 and 28 February 2022 in accordance with the parties’ agreement described in the proposed cross-claim, and that she is therefore not obliged to complete the contract.

  3. In paragraphs 1 and 3 of the proposed cross-claim, the defendant pleads that she is, and was at all material times, a property developer and land trader, the owner of 6 Queen Street, Croydon Park, the owner of a property development site at Austral, and also the sole director and shareholder of JMJ Cosmetic Pty Limited.

  4. In paragraphs 5 to 13 of the proposed cross-claim, the defendant pleads that she and the plaintiff (or the plaintiff’s company OG Capital Pty Limited) had an existing relationship of borrower and lender prior to December 2021. In September 2021, the plaintiff’s company had lent the defendant a sum of $400,000 to facilitate her purchase of property at 151 Wentworth Road, Strathfield, for the purpose of consolidating it with her existing property at 149 Wentworth Road and developing apartments on the two properties. In October 2021, the plaintiff’s company had lent the defendant a further sum of $200,000 so that she could commence preparatory work for a construction certificate in relation to that development. Both of these loans – which are referred to in the proposed cross-claim as the first and second loans respectively – were secured by second mortgages over 149 and 151 Wentworth Road. The defendant pleads that she repaid those loans on 25 March 2022.

  5. In paragraphs 14 and 15 of the proposed cross-claim, the defendant pleads that she negotiated a personal loan from the plaintiff in or about mid- to late November 2021. The particulars of the negotiations set out under paragraph 15 of the proposed cross-claim state that the defendant proposed that the loan be secured by second mortgage over 6 Queen Street, and that the plaintiff proposed that the loan be secured by: (1) a contract for sale of 6 Queen Street; (2) by paying out an existing caveat recorded against the title to that property; and (3) by the lodgement of a new caveat by the plaintiff.

  6. In paragraphs 16 and 17 of the proposed cross-claim, the defendant pleads that she and the plaintiff entered into a loan agreement in or about mid- to lateNovember 2021 on terms that: (1) the plaintiff agreed to lend her the sum of $480,000; (2) that sum would be applied to pay $224,179.60 to remove the existing caveat over 6 Queen Street, with the balance of $225,820.40 to be paid to the defendant; (3) interest would be payable on the principal sum of $480,000 in cash at the rate of 2% per month; (4) the plaintiff (as purchaser) and the defendant (as vendor) would enter into a contract for sale of 6 Queen Street for a price of $2,400,000 and deposit of $480,000, for the purpose of securing the $480,000 loan; (5) within three months after the date of the sale contract, the defendant could elect to rescind the sale contract by notice in writing, whereupon she would be obliged to repay the $480,000 principal sum and any unpaid interest; and (6) any loan establishment fees or legal fees associated with the preparation of the sale contract would be payable by the defendant if she elected to rescind the sale contract.

  7. The proposed cross-claim describes the alleged loan agreement as partly oral and party written. The sale contract constitutes the only written part of the alleged loan agreement. The defendant pleads in paragraph 18 of the proposed cross-claim that her solicitor sought to include the terms of the alleged loan agreement in the sale contract, but that this was rejected by the plaintiff’s solicitor.

  8. The defendant pleads in paragraphs 19 and 20 of the cross-claim that the alleged loan agreement was a collateral contract to the sale contract which she and the plaintiff entered into on 2 December 2021.

  9. In paragraphs 21 to 23 of the proposed cross-claim, the defendant pleads that the plaintiff lent her the sum of $480,000 on or about 2 December 2021 which was applied in accordance with the alleged loan agreement, and that the plaintiff lodged a caveat against the title to 6 Queen Street.

  10. In paragraphs 24 to 28 of the proposed cross-claim, the defendant pleads that she gave written notice electing to rescind the sale contract in accordance with the alleged loan agreement on 22 February 2022, and asked the plaintiff for a payout figure. The defendant’s solicitor gave further written notices of the defendant’s election to rescind on 24 and 28 February 2022. The defendant pleads that on and from 1 March 2022, in breach of the alleged loan agreement, the plaintiff: (1) failed, refused or neglected to recognise the validity of her rescission notices and to provide a payout figure; (2) insisted on completion of the sale contract; and (3) maintained his caveat recorded on the title to 6 Queen Street. The defendant pleads that she is entitled to an order that the alleged loan agreement be performed in accordance with her election to rescind the sale contract. I will refer to this as the defendant’s specific performance claim.

  11. In paragraphs 29 to 32 of the proposed cross-claim, the defendant pleads that the alleged loan agreement and sale contract contained: (1) a promise that, upon her election, she would repay the sum of $480,000 plus 2% interest and any loan establishment fee and legal fees to the plaintiff; (2) that the security for her performance of that promise was the sale contract for the conveyance of 6 Queen Street; and (3) that the sale contract would be rescinded, terminated or abandoned upon the performance of the defendant’s promise to repay. The defendant pleads that the loan agreement and sale contract therefore constituted a mortgage, that the defendant therefore has an equity of redemption with respect to 6 Queen Street, and that she is entitled in the circumstances to “relief under the equity of redemption”. I will refer to this as the defendant’s equity of redemption claim.

  12. In paragraphs 33 to 37 of the proposed cross-claim, the defendant pleads that the plaintiff represented to her in about mid- to late November 2021 in relation to the proposed $480,000 loan that: (1) the plaintiff did not want to use the defendant’s property at Austral, or to take second mortgages over 149 and 151 Wentworth Road, as security for the proposed loan; (2) he wanted to use 6 Queen Street as security for the proposed loan because it was close to where the plaintiff lived and he could easily monitor it; (3) he did not want the security to be a second mortgage; (4) he wanted the security to be a contract for sale of land, and that his solicitor preferred it this way; (5) he wanted the existing caveat removed so that he would be the only caveator; (6) the defendant would have to agree to do the transaction this way if she wanted the $480,000 loan; (7) this way was safer and faster for the plaintiff; and (8) if the $480,000 loan was secured this way, the defendant should and could trust the plaintiff “to give her an opportunity within 3 months of the Contract entry date to not proceed with and/or rescind the Contract by paying out the $480,000 Loan, the 2% interest and any loan establishment fee and associated legal fees”. The proposed cross-claim defines this series of alleged representations as the November 2021 Representation, and I will adopt that convention.

  13. The defendant pleads that she entered into the sale contract in reliance on the November 2021 Representation, and that the plaintiff unconscientiously resiled from that representation by allegedly failing, refusing or neglecting to recognise the validity of the defendant’s notices of rescission served on 22, 24 and 28 February 2022, or to provide a payout figure, and by insisting on completion of the sale contract. The defendant pleads that she will suffer detriment if the plaintiff is permitted to resile from the alleged November 2021 Representation because she will be forced to sell 6 Queen Street for less than its value. In paragraph 4 of the proposed cross-claim, the defendant pleads that the market value of the property at all relevant times was between $2,800,000 and $3,300,000. The defendant adduced evidence of a valuation report dated 10 October 2023 which estimated the market value of the property as $3,600,000. As the author of the report did not articulate the reasons for that opinion, the report was admitted on a limited basis and is not evidence of the truth of the opinion. The proposed cross-claim relies on the doctrine of promissory estoppel as operating to preclude the plaintiff from insisting on specific performance of the sale contract. I will refer to this as the defendant’s promissory estoppel claim.

  14. In paragraphs 38 to 42 of the proposed cross-claim, the defendant pleads that the November 2021 Representation was made in trade or commerce and was misleading or deceptive, and that the defendant, who relied on the November 2021 Representation in entering into the sale contract, is entitled to relief under s 237 of the Australian Consumer Law.

  15. The pleading fails to articulate the facts, matters or circumstances relied on in support of the allegation that the alleged representation, which contains many elements, was misleading or deceptive at the time it was made. I proceed on the assumption that the defendant wishes to claim that it was misleading or deceptive for the plaintiff to represent that, if the $480,000 loan was secured the way that he allegedly required, the defendant should and could trust the plaintiff “to give her an opportunity within 3 months of the Contract entry date to not proceed with and/or rescind the Contract by paying out the $480,000 Loan, the 2% interest and any loan establishment fee and associated legal fees”. I assume that the defendant wishes to claim that this was misleading or deceptive because it should be inferred from the plaintiff’s subsequent conduct in allegedly failing, refusing or neglecting to recognise the validity of the defendant’s notices of rescission served on 22, 24 and 28 February 2022, or to provide a payout figure, and insisting on completion of the sale contract, that the plaintiff had no intention at the time the sale contract was entered into of allowing the defendant to pay the $480,000 plus interest and any fees within three months and to rescind the sale contract. I will refer to this as the defendant’s misleading conduct claim.

  16. In paragraphs 43 to 45 of the proposed cross-claim, the defendant pleads that the sale contract was entered into in order to provide the plaintiff with security for the alleged loan agreement, that it would be unconscientious for the plaintiff to insist on the performance of the sale contract in all the circumstances, and that the defendant is entitled to relief against forfeiture. I will refer to this as the defendant’s relief against forfeiture claim.

  17. In paragraphs 46 to 48 of the proposed cross-claim, the defendant pleads that she paid the plaintiff a total sum of $105,000 during the period from March to July 2022 in respect of interest on the alleged $480,000 loan. The defendant pleads that the non-completion of the alleged loan agreement since about 1 March 2022 has been attributable to the plaintiff’s actions which have evinced an intention not to be bound by the alleged loan agreement. The defendant pleads that the plaintiff is therefore not entitled to interest at the rate of 2% per month and that it is for the Court to determine what interest, if any, is payable from 1 March 2022 to date. I will refer to this as the defendant’s interest claim.

  18. Finally, the defendant pleads in paragraphs 49 and 50 of the proposed cross-claim that the plaintiff’s alleged breach of the alleged loan agreement, his maintenance of his caveat over 6 Queen Street, and his alleged resiling from the alleged November 2021 Representation has caused the defendant to suffer loss and damage, in that she has been unable to access equity in 6 Queen Street to borrow for business purposes. The defendant claims that she is entitled to damages or equitable compensation for such alleged losses. I will refer to this as the defendant’s compensation claim.

  19. The defendant relied on her affidavit affirmed on 3 October 2024, together with an affidavit of Bao-Quy Nguyen-Phuoc sworn on 5 August 2022, as demonstrating that her defence and cross-claim are asserted bona fide and raise arguable issues for trial.

  20. In her 3 October 2024 affidavit, the defendant gave evidence about the alleged loan agreement.

  21. The defendant deposed that she and the plaintiff discussed a loan of $200,000 one evening in mid- to late November 2021, for which the defendant offered a second mortgage over her Austral property or over her properties at 149 and 151 Wentworth Road as security, but the plaintiff said that he preferred to take security over 6 Queen Street. According to the defendant’s evidence, she agreed at the end of the discussion that evening that the plaintiff could “do a caveat loan” over 6 Queen Street.

  22. The defendant deposed that she had a further conversation with the plaintiff about one day later in which he told her that his solicitor had said they must enter into a sale contract for 6 Queen Street in order to secure the proposed loan, and that:

“The deposit under the sale of land contract will be loan amount. If you pay back the loan amount within 3 months we can rescind the sale of land contract without penalty. Also, you will have to pay out the other caveat on the title of 6 Queen Street, Croydon Park, therefore the loan will have to be $480,000 not $200,000.”

  1. According to the defendant’s evidence, she asked the plaintiff why he could not “just do a caveat loan” and the plaintiff replied: “That’s what my solicitor said.”

  2. The defendant’s 3 October 2024 affidavit exhibits a lengthy exchange of messages between the defendant and the plaintiff during the period from 13 September to 22 June 2022. The defendant relies on those messages as supporting her account of the alleged conversation referred to above.

  3. Almost all of the WhatsApp messages are messages from the defendant to the plaintiff. There are very few messages from the plaintiff to the defendant.

  4. I have read all of the messages. They are written in terms that are sometimes difficult to follow. It may be that English is not the defendant’s first language. It may be that she was in the habit of typing WhatsApp messages without paying much attention to their wording or grammar, in the belief that the plaintiff would understand the gist of what she was communicating to him.

  5. Doing the best I can, the messages reveal that, from about 24 November 2021, the defendant was frequently messaging the plaintiff about an urgent need for funds to settle her purchase of a property. The defendant was very upset with someone named “Tony” who, according to her messages, had agreed to lend funds and then changed his position. The defendant was urging the plaintiff to intercede with Tony on her behalf.

  6. By 25 November 2021, the defendant was asking the plaintiff to lend her $400,000 so that she could repay third persons to whom she referred as her “5% people” who had lent her money to put towards the purchase of the Austral property, and who were demanding to be repaid. The defendant described herself as “very stressed” by these demands. At 7:31pm on 25 November 2021, the plaintiff messaged the defendant asking whether she had a contract for 6 Queen Street to show “him” the price for which the defendant had bought the property. The messages do not reveal the identity of the person to whom the plaintiff wanted to show the contract. The defendant then sent a series of messages to the plaintiff comprising attachments, followed by the following series of messages:

At 8:56:16pm:

“Did sent full contract and first paper contract signed and value report from st George bank last time”

At 8:57:50pm:

“Please help me transfer $400 k, my people help me 5% keep call me. I’m not answering it not good.”

At 9:11:49pm:

“Call me please”

At 9:12:12pm:

“400k how much for interest?”

At 9:12:26pm:

“Ok I’m believe you”

At 9:12:48pm:

“Do your way to make you comfortable”

At 9:13:17pm:

“Give me 1.5% is that ok? 3 months pay back”

At 9:15:02pm:

“3 months pay back but not login on sell until 3 months pay back”

  1. The following messages were exchanged between the defendant and the plaintiff later that evening:

From the defendant at 10:47:26pm:

“St George $1,916,000

$200 k with 3 months interest $24 k

Need $400 for me pay back 5% is $288 k”

From the defendant at 10:52:16pm:

“Contract of sell $2,600,000

Because St George bank $1,916,000

Caveat $224,000

Give me $400 k

Is together $2,540,000

But I’m need pay 3 months for st George tomorrow if you give me $400 k paid 5% $288,000 and 3 months st George around $25 k”

From the defendant at 10:58:02pm:

“This price is security you $400 k to $500 k

Because value is $3,000,000 to $3,200,000 now

…”

From the plaintiff at 10:58:50pm:

“I can’t do more than 2.4 on contract he won’t do it”

  1. The defendant sent many more messages to the plaintiff that evening, including messages at 11:26:08pm and 11:27:18pm stating:

“100% pay you back in 3 months.if I’m can not pay will sell property pay for you in 3 months.like I’m said pay you back money apartments because new year.I’m will promise”

“Money you give 400 k and 200 k for apartments I’m 100% return this money before new year”

  1. I understand the defendant’s reference to “400 k and 200 k for apartments” to be a reference to the loans that the plaintiff’s company had made to the defendant for the purpose of her purchase of 151 Wentworth Road and her development of 149 and 151 Wentworth Road.

  2. The messages exchanged between the defendant and plaintiff on 26 November 2021 included the following messages between 2:51:38pm and 3:24:21pm:

From the defendant:

“Transfer 240 k for caveat and 288 k for 5% today please”

From the defendant:

“Please do not kill.do your promise”

From the plaintiff:

“Call u soon”

From the defendant:

“I’m did sent contract of sell for charbel . hi not need to Oder with council. Just change the name only”

From the defendant:

“Give me 1.5% interest please”

From the plaintiff:

“As agreed I will keep my word I promised you.”

“Not more not less”

“I told you I will not take upfront as well to help you”

From the defendant:

“Ok”

  1. The reference to “charbel” is a reference to the plaintiff’s solicitor, Charbel Azzi of Lionheart Lawyers.

  2. Counsel for the defendant submitted that the plaintiff’s message “I will keep my word I promised you”, understood in context, was an admission by the plaintiff that he had promised that the defendant could rescind the contract if she repaid the deposit amount within three months. Understood in the context of the defendant’s request for an interest rate of 1.5%, and the plaintiff’s message in the context of his two further messages that immediately followed, it seems to me far more likely that the plaintiff was simply saying that he would give the defendant the interest rate he had already promised her – not more and not less. According to the defendant’s evidence to which I refer immediately below, the plaintiff and the defendant had agreed on an interest rate of 2% per month by this time.

  3. In her 3 October 2024 affidavit, the defendant deposed that she discussed the sale of land contract idea with her solicitor in about late November 2021, and he advised that special conditions should be included acknowledging that the contract was to secure a loan of $480,000 and that the defendant could elect to rescind the contract within three months if she refunded the “deposit” of $480,000 together with interest at 2% per month. The defendant’s solicitor then drafted an “Annexure A” to be inserted into the sale contract. The defendant then signed the contract in that form and her solicitor emailed it to the plaintiff’s solicitor.

  4. The terms of Annexure A stated:

“This contract is for the sale of the property described herein on the following terms:

(a)   The vendor acknowledges received the sum of $480,000 on exchanged of the contracts.

(b)   The vendor and the purchaser herein mutually agreed that should the vendor decided not to proceed with the sale of the above property, the vendor must refund the deposit sum to the purchaser plus 2% penalty interest per month.

(c)   Should the vendor decide to rescind the contract, she must notify the purchaser in writing within three (3) months from the date of the contract.

(d)   Upon received the full amount of the said refund, the purchaser must sign a deed of mutual rescission and releases the vendor from this contract.

(e)   The purchaser must not public the sale of this property either on internet or any other media about the sale of this property.

(f)   These special conditions form part of the contract.”

  1. During the afternoon and evening of 26 November and the morning of 27 November 2021, the defendant sent several messages to the plaintiff urging him and his solicitor to take a second mortgage with a caveat over 6 Queen Street rather than entering into a contract for sale of that property. The plaintiff responded to these requests with the following series of messages sent to the defendant between 1:49:40pm and 1:56:57pm on 27 November 2021:

“Lisa we discussed this 1000 times”

“It is not better for me to do this way it’s better for YOU”

…

“We spoke about this BEFORE and I told you YOU CAN’T PUT THIS IN THE CONTRACT AND YOU STILL DID IT”

“You lied to me”

“When before the lawyer said don’t do it, I STILL DID IT TO NOT LIE TO YOU”

“No one will do second mortgage on this”

“This way is safer and faster for me I told you I can give you 480k straight away but you not trust me”

  1. The defendant responded to this series of messages at 2:26:09pm, stating:

“I’m never lie to anyone.at you must know about.that reason I’m have lost off people like me do business with them.but need be fair why conditions in 3 months I’m pay money I’m can not cancel.if I’m sell now or pay st George $1,900,000 and caveat $240 k I’m get in hand around $900k to 1 million at I’m have Chinese people like my property offer me $3,500,000

Like I’m said I’m never and ever sell my house.if sell! Sell apartment and R3 and sell austral, not sell my house, before go with this contract $2,400,000 much to agree terms Annexure ‘A’ …”

  1. The plaintiff did not respond to that message, or a similar message sent by the defendant a short time later.

  2. The defendant then sent a series of messages to the plaintiff between 2:39:52pm and 3:37:33pm on 27 November 2021 indicating that she had put other arrangements in train which she was hoping would provide the funds that she required and stating that “I’m” not stressed about the 5% any more hoping hoping”. The plaintiff sent three messages to the defendant in reply at 4:42pm:

“Ok Lisa hopefully they pay, good luck”

“If not, call me on Monday we will fix the contract but please don’t ask me mortgage anymore”

“If you want to do it my way, I’m happy to help”

  1. The defendant continued to send messages to the plaintiff throughout the afternoon of 27 November 2021 updating him on delays in the alternative funding she had been hoping for and telling the plaintiff that she was, once again, “stressed”. At 5:30:16pm, the defendant sent the plaintiff the following message:

“Like I’m said contract this signed it I’m, with you that reason I’m put $2,400,000 but if some one else I’m will never put this price.but you much to agreement in 3 months I’m pay back and cancel contract like my solicitor put on contract.but transfer $250 k for me today. I’m give back for my people. 100% you will get back quickly this money for my buyer austral …”

  1. At 9:35:36pm that evening, the defendant sent a further message reminding the plaintiff that she had told him “not to register and not to put on internet as it demises my price on market value again” and because the “tax man will question I sold cheap and may think I tried to avoid tax selling at a cheaper price.” The plaintiff replied at 9:00:20am the following morning, 28 November 2021: “No one will question anything if it does not settle.”

  2. The defendant sent the plaintiff a further message later in the morning of 28 November 2021 at 11:00:17am, which included the following:

“… I don’t agree to you not allowing me to cancel the contract once your money is repaid in 3 months. … I’m made a promise to Buddha that I will not sell Queen St and by giving you the Contract of Sale, I have broken that promise with Buddha and it will affect my luck. To minimise that, it is in my best interest to repay you asap. I don’t break promises but many people break promises with me in the last few months. Giving you the Contract of Sale already showed a lot of trust that I have for your BUT it is a security for you only. I don’t ever want to sell Queen St. If to sell, the price is not $2.4 mil.”

  1. On the defendant’s evidence, the contract that she had “given” to the plaintiff at this time was the sale contract containing Annexure A, which the plaintiff had rejected.

  2. On the morning of 29 November 2021, the defendant and her solicitor received an email or message from the plaintiff’s solicitor attaching a sale contract. The defendant forwarded this on to the plaintiff via WhatsApp. In circumstances where the defendant had called off the proposed transaction with the plaintiff on 27 November 2021 after telling him that she had found alternative funding, the plaintiff messaged the defendant, saying that the solicitor’s email had been sent on Friday and that she needn’t worry about it but that “[i]f you still want the money today and you change your mind just let me know first”.

  3. It appears that the defendant did change her mind. Between 29 November 2021 and 2 December 2021 – the date on which contracts were exchanged, there were a series of further messages from the defendant, with occasional replies from the plaintiff, concerning the timing of the plaintiff’s payment of the $480,000 (less the sum required to be paid to the caveator to remove the existing caveat on 6 Queen Street). It appears from the tone and content of the defendant’s messages that her need for funds was becoming increasingly urgent. On the day of exchange, the defendant sent messages to the plaintiff at 10.25:11am and 10:28:53am stating:

“Tell Charbel Solicitor don’t be too smart.at we are working on believe.I’m not at stupid to loose my property at value $3,500,000 now”

“I’m believe you, why you not believe me.and believe Charbel Solicitor.at I’m believe you that reason take loan $480 k for you happy and security my property 6 queen to be contact of sell and give you cancel when 3 months pay back.”

  1. In my opinion, the contemporaneous WhatsApp messages arguably corroborate the defendant’s evidence that the plaintiff told her in a telephone conversation in mid- to late November 2021 that “[i]f you pay back the loan amount within 3 months we can rescind the sale of land contract without penalty”. In particular, there is no reason why the plaintiff and the defendant would otherwise have been discussing an interest rate in the messages referred to at [44]-[45]. The proposed defence and cross-claim raise an arguable issue about whether the plaintiff and the defendant entered into the alleged loan agreement.

  2. However, the terms of the alleged loan agreement are inconsistent with the admitted written sale contract in that the right of rescission allegedly conferred on the defendant vendor under the alleged loan agreement is inconsistent with her obligation to complete the sale contract. As the plaintiff submitted, it follows that the alleged loan agreement cannot be a contract that was entered into in consideration for the parties entering into the sale contract. [3] That characterisation of the alleged loan agreement as a collateral contract to the sale contract is essential to the defendant’s specific performance claim, her relief against forfeiture claim, her characterisation of the transaction as a mortgage, and her equity of redemption claim. Those elements of her cross-claim, and her defence that she is not obliged to complete the sale contract by reason of the alleged loan agreement, therefore fail to raise an arguable issue for trial.

    3. Hoyts Pty Ltd v Spencer (1919) 27 CLR 133; [1919] HCA 64 at 146-147 (Isaacs J, Knox CJ and Rich J agreeing).

  3. The proposed defence and cross-claim suffer from the further problem that evidence adduced by the defendant demonstrates that she did not pay or tender the sum of $480,000 (let alone interest and fees) to the plaintiff at the time of issuing her notices of rescission in February 2022 or at any time prior to 2 March 2022 when the sale contract was due to be completed. The WhatsApp messages show that the defendant sent the plaintiff a message early on the morning of 20 February 2022 setting out various calculations of interest and fees relating to 6 Queen Street and 149 and 151 Wentworth Road, and asking the plaintiff if her calculations were correct:

“If correct I’m will try tell my pay give borrowing 6 queen give me 3 months cash interest pay you for 6 queen and transfer for 480 k for your.

…

Please check it.so Monday I’m try get money pay interest for you first then get money from people give borrowing for 6 queen pay back.but problem 151 Sumer law not remove caveat so can not get loan for 6 queen st.my Solicitor try dealing with summer law pay 6 queen and 151 at same time then they will remove.any way I’m try pay money pay you interest first tomorrow.”

  1. There are no messages after 20 February 2022 until 14 March 2022. During that period, the defendant sent an email to the plaintiff’s solicitor on 22 February 2022 stating:

“Hi Charbel! I’m believe you fully understand this contract is loan from Laurie for Laurie to security his money loan $480 k with 3 months if I’m not pay Lauria Lauria can take the house. I’m not at stupid I’m no I’m will pay back $480k and 3 months interest plus estimate fee, and you fee did pay, Lauria agreed pay $50 k for Lauria account, $30 k cash. I’m can do that …”

  1. The email continued, referring to problems that the defendant was experiencing with the lender from whom she was borrowing the funds to pay the plaintiff, including (but not limited to) the lender’s objection to paying any component of the funds in cash.

  2. On 24 February 2022, the defendant’s solicitor sent an email to the plaintiff’s solicitors attaching a copy of the sale contract including Annexure A, and stating that, “in accordance with Annexure A, the vendor exercises her right to rescind the contract and does not wish to proceed with the sale”. The email attached a document entitled “Notice of rescission of contract for the sale of land” which stated that “the purchasers” rescinded the contract pursuant to s 66U of the Conveyancing Act 1919 (NSW). That section confers a right of rescission on a purchaser during any cooling off period under ss 66S and 66T. It conferred no rights of rescission on the defendant vendor in this case. However, the email itself would arguably constitute effective notice of rescission if the alleged loan agreement was a collateral contract to the sale contract and if the defendant was entitled under the terms of that loan agreement to exercise a right to rescind without first paying the amount of the alleged debt together with interest and any fees.

  3. On 28 February 2022, the defendant’s solicitor sent a further email to the plaintiff’s solicitor stating that they had been attempting to make contact “in relation to the various loans between our clients”, and noting that “our client has exercised her right to cancel the contract in accordance with Annexure A”.

  4. The defendant had a missed voice call from the plaintiff on 14 March and again on 15 March 2022.

  5. On 21 March 2022, the defendant sent a message to the plaintiff stating that her solicitor had emailed the plaintiff a few times and had received no response. The plaintiff replied that he had tried calling the defendant a few times to understand what the defendant’s solicitor meant by those emails. After a few messages, the defendant sent a message describing the transaction as a “loan 480k”. The plaintiff replied that the defendant had lied to him. The defendant returned the accusation, adding: “If I’m sell my property is $3,500,000. Remember that.”

  6. Between 21 March and 22 June 2022, the defendant sent several messages to the plaintiff asserting that she had never agreed to sell her home at 6 Queen Street to the plaintiff and that the sale contract had been security for a loan of $480,000 for three months. At the same time, it is clear from the defendant’s messages sent to the plaintiff during this period that she was unable to repay the $480,000. For example, the defendant messaged the plaintiff on 8 April 2022 stating: “I promise whole 480k in your account before 19th April 2022”. On 11 April 2022, the defendant said: “Money $480k will pay in you account on 25/4/2022 or 26/4/2022 the pending the bank proceed to clear”. On 20 April 2022, the defendant said: “200% 480k k will 25 of this month”. Between 26 April and 2 May 2022, the defendant received several missed voice calls from the plaintiff, and several messages from the plaintiff asking her to call him. On 3 May 2022, the plaintiff sent a message to the defendant: “You told me 100% on the 19th, then 110% the 25th, then you said every day since then tomorrow, tomorrow, tomorrow, tomorrow, tomorrow. Every day you lie.” The defendant replied: “Yea. I’m busy now. Money will in you bank account.”

  1. The defendant did not pay, and the plaintiff commenced these proceedings on 21 June 2022. The defendant sent the plaintiff a message the following day referring to having received the statement of claim through her solicitor and stating: “Im ready money for you next week, and interest, you need to remove the supreme court, at you know what we are agreed”.

  2. As counsel for the defendant acknowledged during the hearing of the second application to set aside the default judgment, the defendant has never paid the sum of $480,000 to the plaintiff. Even now, the defendant does not tender that payment. Nor is there any evidence that the defendant is able to tender that payment. The plaintiff adduced evidence to the effect that the defendant is in default under her mortgage which is registered against the title to 6 Queen Street, and that the mortgagee is considering taking steps to exercise its power of sale. This was not disputed by the defendant, who was afforded an opportunity to adduce evidence about that matter. The defendant adduced evidence from Mr Wu, a law clerk in the employ of the firm of solicitors acting for the defendant, that the defendant had instructed him that she had received “oral approval from Front Financial to enable her to either pay the arrears owing on the existing Westpac mortgage or to fully refinance the Westpac mortgage secured”. There is no evidence of the information that the defendant provided to the prospective financier “Front Financial” in order to procure the “oral approval”. There is no documentary evidence of any finance approval, even on an in-principle basis and subject to conditions. Mr Wu’s evidence merely stated the defendant’s instructions, and was silent about whether or not he believed the information conveyed by the defendant. Mr Wu deposed that the defendant would try to obtain written approval before the hearing on 20 June 2025. No such written approval was tendered at the hearing.

  3. The core of the alleged November 2021 Representation underpinning the defendant’s proposed promissory estoppel and misleading conduct claims is an alleged representation by the plaintiff that the defendant should and could trust the plaintiff “to give her an opportunity within 3 months of the Contract entry date to not proceed with and/or rescind the Contract by paying out the $480,000 Loan, the 2% interest and any loan establishment fee and associated legal fees”. [4] That pleading is consistent with Annexure A drafted by the defendant’s solicitor. [5] It is clear from the WhatsApp messages that the defendant did not pay or even tender the sum of $480,000 to the plaintiff before or at the time of claiming to exercise a right to rescind or cancel the contract. Nor has she done so at any time subsequently. To the extent that the defendant’s proposed defence and cross-claim and her 3 October 2024 affidavit suggest that she has been unable to do so by reason of the plaintiff failing to provide a payout figure, that cannot be accepted as bona fide as it is contrary to the defendant’s own email sent to the plaintiff’s solicitor on 16 February 2022. [6] On the defendant’s own evidence, the right of rescission on which she wishes to rely in her proposed defence and cross-claim was never enlivened.

    4. See [24] above.

    5. See [48] above.

    6. See [62]-[63] above.

  4. In those circumstances, the defendant’s proposed promissory estoppel claim raises no bona fide arguable question for trial as to whether the plaintiff’s claim for specific performance involves an unconscientious departure from the alleged November 2021 Representation. That is so, even assuming that the defendant’s proposed reliance on the doctrine of promissory estoppel is properly characterised as seeking to restrain the enforcement of rights by the plaintiff rather seeking to enforce rights asserted by the defendant. [7]

    7. Saleh v Romanous (2010) 79 NSWLR 453; [2010] NSWCA 274 at [73]-[74] (Handley AJA, Giles JA and Sackville AJA agreeing); Ashton v Pratt (2015) 88 NSWLR 281; [2015] NSWCA 12 at [138] (Bathurst CJ, McColl JA agreeing); Fiorenza v Fiorenza [2024] NSWSC 549 at [75]-[78] (Peden J).

  5. Nor do the proposed defence and cross-claim raise a bona fide arguable question for trial as to whether the alleged November 2021 Representation was misleading or deceptive in that the plaintiff did not intend to abide by it. [8] The WhatsApp messages tendered by the defendant show that it was the defendant who failed to abide by the alleged arrangement in failing to pay the $480,000 within three months of the sale contract, and that the plaintiff was nevertheless entertaining promises by the defendant to pay during March and April 2022 before running out of patience in early May 2022. [9]

    8. See [27] above.

    9. See [66]-[69] above.

  6. The defendant’s proposed interest claim and compensation claim fail to raise bona fide arguable issues for trial for the same reasons as I have explained above in relation to the other proposed claims.

  7. The proposed interest claim suffers from the further problem that the defendant’s evidence in her 3 October 2024 affidavit that she paid a total amount of $105,000 to the plaintiff in cash on 23 March 2022 ($75,000), 8 April 2022 ($15,000) and 12 May 2022 ($15,000), of which $95,000 was interest on the alleged loan of $480,000, does not marry with the allegedly agreed interest rate of 2% per month. Bao-Quy Nguyen-Phuoc gives evidence of having witnessed cash payments made by the defendant on 23 March and 8 April 2022, but sheds no light on the purpose of those payments. It is plain from the WhatsApp messages that there were other property and loan dealings between the plaintiff and the defendant at the time of those alleged payments, including in relation to a property at Ashfield.

  8. The defendant’s proposed compensation claim suffers from the further problem that the alleged loss identified in the cross-claim is an inability for the defendant to access equity in 6 Queen Street to borrow for business purposes. However, five caveats recorded on the title to 6 Queen Street are prima facie evidence that the defendant has in fact used her equity in the property as security for various loans in the period since March 2022. [10] Mr Wu’s evidence of the defendant’s instructions concerning three of those five caveats contains no cogent explanation that is consistent with an inability to use 6 Queen Street as security for business loans. It is telling that Mr Wu does not depose to believing the instructions the defendant has given in relation to those three caveats. Mr Wu’s evidence carries no weight for that reason. There is no evidence explaining or purporting to explain two of the five caveats. The proposed compensation claim is not asserted bona fide.

    10. See [97(3)], [98], [102], [111(1)] and [111(2)] below.

  9. In determining whether to set aside the default judgment, the Court is not engaged in a hearing of the case on its merits. However, the applicant is required to demonstrate a bona fide arguable defence. In the present case, the evidence adduced by the defendant does not disclose a bona fide arguable defence and cross-claim for all of the reasons explained above.

  10. Even if the defendant had established a bona fide arguable defence and cross-claim, I would have declined to exercise the discretion in favour of the defendant by setting aside the default judgment on account of: (1) the lack of any adequate explanation for the defendant’s default prior to 14 June 2024; (2) her egregious delay in taking steps to set aside the default judgment which the defendant has sought to explain by evidence that cannot be accepted for the reasons I will explain below; and (3) the prejudice that the plaintiff would suffer by reason of that delay if the default judgment were now set aside.

Absence of explanation for the default

  1. The plaintiff served his notice of motion for default judgment on the defendant by email on 31 May 2024. The defendant replied to that email on 4 June 2024 to the effect that she believed her evidence (which she had not yet served) would be accepted and that she would win in the end. The defendant’s email also stated: “please noted ! i was busy with a lot project investment and also every busy with make and sales skincare products, perfumes, candle ,hair remove, eyelashes grown .and do products training by myself with every busy have no time to go with that problem from plaintiff organizated from begin and try to scam me with try to Rob and steal my property.”

  2. Peden J, in her reasons for judgment delivered on 14 June 2024 for striking out the defence and cross-claim and for entering default judgment for specific performance of the sale contract, recorded that the defendant had failed to comply with orders made for the filing and service of her evidence in the proceedings on 27 October 2023, 1 December 2023, 2 February 2024, and 10 May 2024.

  3. I note that the orders made on 1 December 2023 were made after the defendant sent an email to Justice Peden’s chambers on 27 November 2023 stating that she had just been to the Court “to explain about the evidence and how I will prepare for the next court attendance”, that she had also spoken to Channel 9 and the ABC who were interested in “running my story”, that she had notified the Australian Taxation Office in relation to interest payments made in cash for the loans secured against 149 and 151 Wentworth Road, and that she refused to permit the plaintiff to access her property for the purpose of preparing valuation evidence. The defendant had sent similar emails to the plaintiff’s solicitors after being served with the plaintiff’s evidence.

  4. I respectfully agree with Peden J’s characterisation of the defendant’s conduct of the proceedings as a consistent failure to comply with the Court’s orders concerning the preparation and service of lay and expert evidence in relation to both the plaintiff’s statement of claim and the defendant’s cross-claim.

  5. The defendant failed to appear at the hearing on 14 June 2024 to offer any explanation for her default or to otherwise oppose the application for default judgment. Peden J struck out the defendant’s pleadings and entered default judgment in her absence after reviewing the plaintiff’s evidence and being satisfied that the defendant had been notified of the application.

  6. The orders made on 14 June 2024 required the defendant to specifically perform the sale contract on or before 14 September 2024. Her Honour also ordered that, in default of the defendant complying with those orders, the Registrar be appointed to fix a time, date and place for completion of the contract and to execute all necessary documents and do all things necessary on behalf of the defendant in order to specifically perform the contract.

  7. The plaintiff’s solicitors corresponded with the defendant (who was not then legally represented) on several occasions during the period between 14 June 2024 and 14 September 2024 concerning a prospective resolution of the matter and, when no such resolution was agreed, arrangements for the completion of the contract in accordance with the Court’s orders. In the course of that correspondence, the defendant sent lengthy emails to the plaintiff’s solicitors on 15 June 2024, 15 July 2024 and 29 July 2024. The solicitors who are presently acting for the defendant, EGR Law, filed a notice of appointment of solicitor on 31 July 2024.

  8. The plaintiff caused the matter to be listed in the Real Property List on 4 October 2024 for directions concerning the working out of the orders made on 14 June 2024 for specific performance of the contract.

  9. On the morning of 4 October 2024, the defendant served her 3 October 2024 affidavit, together with its exhibits, on the plaintiff. In that affidavit, the defendant deposed that she was not in Court on 14 June 2024 when the default judgment was entered, but offered no explanation for her absence on that particular occasion. I will return later in these reasons to the explanation propounded by the defendant in that affidavit for her default in the proceedings generally.

  10. On 4 October 2024, Peden J granted leave to the defendant to file a notice of motion seeking to set aside the default judgment. The defendant was ordered to file and serve the motion and all evidence in support by 11 October 2024.

  11. The defendant failed to comply with those orders.

  12. The notice of motion seeking to set aside the default judgment was filed on 15 October 2024.

  13. The defendant was granted extensions of time for the filing and service of her evidence in support of the motion. Kunc J made orders on 8 November 2024 listing the motion for hearing on 6 December 2024 and requiring the defendant to serve all further evidence and submissions in support of the motion by 29 November 2024.

  14. On 25 November 2024, EGR Law filed a notice of ceasing to act.

  15. The defendant did not file any further evidence, or any submissions, in support of her motion to set aside the default judgment, by 29 November 2024 or at all.

  16. The defendant failed to appear at the hearing of the motion before Kunc J on 6 December 2024.

  17. On that date, Kunc J made orders dismissing the defendant’s motion filed on 15 October 2024, ordering the defendant to pay the plaintiff’s costs of the proceedings from 14 June 2024 to 6 December 2024 (including the costs of the motion), and referring the proceedings to the Registrar to take the steps set out in the 14 June 2024 orders for specific performance of the contract. His Honour directed the plaintiff to notify the defendant of those orders by 12 December 2024.

  18. The defendant was notified of those orders on 10 December 2024.

  19. At the time of the dismissal of the defendant’s first application to set aside the default judgment on 6 December 2024, the property was subject to a registered mortgage in favour of Westpac Banking Corporation and three caveats:

  1. Caveat AR676219 lodged by the plaintiff in respect of his claimed interest in the land as purchaser under the contract for sale;

  2. Caveat AT572532 lodged by Investment Property Specialists Pty Ltd on 3 November 2023 claiming a mortgage over the property securing all moneys payable by the defendant to the caveator under a loan agreement dated 18 July 2021; and

  3. Caveat AU611263 lodged on 25 November 2024 by ASCF Funding Solutions Pty Ltd claiming a charge by virtue of a signed agreement dated 16 September 2024 between the defendant and the caveator.

  1. On 10 February 2025, ASCF Funding Solutions Pty Ltd lodged caveat AU813890 against the title to the property, claiming a charge by virtue of an agreement dated 23 December 2024.

  2. On 28 March 2025, the plaintiff’s solicitors notified the defendant that they had approached the Registrar in accordance with order 6 of the orders made on 6 December 2024 (which directed the plaintiff to liaise with the Registrar in accordance with order 6 of the orders made on 14 June 2024), and that they intended to schedule an appointment with the Registrar on 3 April 2025. The defendant sent three responses to that email between 2:01pm and 2:28pm on 28 March 2025 advising that she was organising to see a solicitor about the matter, stating that she would be “following in court matter again”, and providing her mobile telephone number and inviting the plaintiff’s solicitors to contact her.

  3. On 4 April 2025, the Registrar made orders fixing the time, date and place for completion of the contract as 2:30pm on Friday, 9 May 2025 through a specified PEXA electronic workspace. The Registrar made specific orders addressing the steps that would be required in order to facilitate completion on that date, including orders for the review and approval by the Registrar of a settlement adjustment sheet to be prepared by the plaintiff together with all supporting documents.

  4. The plaintiff’s solicitors notified the defendant of those orders on 8 April 2025.

  5. On 10 April 2025, a caveat lodged by 108 Build Pty Ltd was recorded against the title to the property as caveat AU966533. 108 Build Pty Ltd claimed a charge over the property by virtue of an investment loan agreement between the caveator and registered proprietor dated 8 August 2024.

  6. During the period between 6 and 8 May 2025, the Registrar reviewed the plaintiff’s settlement adjustment statement in accordance with the orders made on 4 April 2025. On 8 May 2025, the Registrar made orders approving the settlement adjustment statement and directing the plaintiff to pay the balance of $1,920,000 to the defendant on completion of the contract in accordance with the settlement directions in the approved settlement adjustment statement. The orders noted that the mortgagee had confirmed that the amount required to discharge the registered mortgage was $2,115,455.40 and that the plaintiff proposed to pay the whole of the amount payable to the purchaser together with the shortfall of $211,770.40 to the mortgagee on completion in order to facilitate the discharge of the mortgage and transfer of title to the plaintiff.

  7. By 8 May 2025:

  1. the solicitors for Investment Property Specialists Pty Ltd had informed the plaintiff’s solicitors that its caveat AT572532 would be withdrawn on completion provided that it could be satisfied that there was no surplus;

  2. the solicitors for ASCF Funding Solutions Pty Ltd had informed the plaintiff’s solicitors that it would withdraw caveat AU611263 on completion; and

  3. the solicitors for 108 Build Pty Ltd had informed the plaintiff’s solicitors that it would withdraw caveat AU966533 on completion.

  1. At 1:36pm on 8 May 2025, the plaintiff’s solicitors received an email from a Mr Victor Huynh of Victor Lawyers advising that he had been instructed by a Ms H Pham to lodge a caveat against the property. This caveat claimed an estate in fee simple by virtue of a “deed of loan agreement” dated 9 April 2024. It was recorded on the title to the property as caveat AV41522, and this precluded completion of the contract on 9 May 2025 in accordance with the Registrar’s orders made on 4 April 2025.

  2. The defendant sent lengthy emails to Westpac’s Mortgage Operations Service Centre and to the Australian Taxation Office on the afternoon and evening of 8 May 2025 accusing the plaintiff of having scammed or defrauded her by pursing his claim for specific performance of the sale contract. The defendant asked the Australian Taxation Office to place on hold its processing of the foreign resident capital gains tax withholding rate variation application that the plaintiff had submitted in order to facilitate completion of the sale contract. The defendant told the Australian Taxation Office “I need more time to get my solicitor get sydney high court involve and investigate this matter of massive scam to be fair to me”. The defendant asked Westpac to “please stop the settings for me help time go against the court stamp”.

  3. At 11:15pm on 8 May 2025, the defendant sent a lengthy email to the email address used by the Associate to Justice Darke, prior to his Honour’s retirement from the Court, requesting “help with stop the seal of the order in relation to this matter, as I believe I am the victim of a serious and ongoing scam orchestrated by the purchaser, Mr Laurie Soueid, and his solicitor”. The defendant sent substantially the same email to the Registry of the High Court at 6:43am on 9 May 2025. The defendant sent a further email in the same or similar terms to the former Associate to Justice Darke, the Westpac Mortgage Operations Service Centre, and the solicitors for the plaintiff on 12 May 2025. The defendant sent a similar email to the chambers of Justice Peden on 13 May 2025.

  4. In the period since 8 May 2025, the amount payable to the mortgagee to discharge the mortgage over the property has increased. The plaintiff remains ready, willing, and able to proceed to completion on the basis that he will pay the mortgagee the whole of the amount that it has calculated as owing in order to facilitate the discharge of the mortgage and transfer of the title to him.

  1. On 9 May 2025, the plaintiff’s solicitors received a communication from a solicitor at MinterEllison indicating that they were acting for the mortgagee and had been instructed to take steps to enforce the mortgage. MinterEllison were informed that the contract for sale of land was to be completed that very day. In the period since the contract failed to complete on 9 May 2025, the plaintiff’s solicitors have not received any further communication from solicitors for the mortgagee indicating its position.

  2. On 16 May 2025, the plaintiff commenced separate proceedings in this Court seeking orders for the withdrawal of caveat AV14522 that had been lodged on 8 May 2025. Those proceedings were listed for hearing on 26 May 2025. On that day, orders for the withdrawal of the caveat were made by consent between the plaintiff and the defendant caveator.

  3. On 2 June 2025:

  1. Beninga Pty Ltd lodged a caveat for recording against the title to the property claiming a charge over the property pursuant to a deed of guarantee and indemnity dated 1 February 2023 and a deed of guarantee and indemnity dated 3 March 2023; and

  2. AOC Finance Pty Ltd lodged a caveat for recording against the title to the property claiming a charge over the property pursuant to a deed of guarantee and indemnity dated 10 November 2022 and a deed of guarantee and indemnity dated 16 November 2022.

  1. Those caveats, which have not yet been recorded on the title to the property, have been allocated numbers AV111736 and AV111713, respectively.

  2. The plaintiff’s solicitor has given evidence of the significant legal costs incurred by the plaintiff in making arrangements through the Registrar for completion of the sale contract in accordance with the orders made on 14 June 2024 and 6 December 2024, and in liaising with the serial caveators.

  3. EGR Law had resumed acting for the defendant in these proceedings by filing a notice of appointment of solicitor on 20 May 2025. On 3 June 2025, EGR Law served on the plaintiff’s solicitors the present notice of motion seeking (for a second time) to set aside the default judgment entered on 14 June 2024 and advised that they would approach the Duty Judge on 4 June 2025 seeking orders listing the motion for hearing.

  4. That notice of motion was filed in Court on 4 June 2025.

  5. The hearing of the motion has been delayed in the course of the last week to permit the defendant time to recover somewhat following an invasion of her home which she has reported to police, and more recently to allow time for the defendant to prepare the defence and cross-claim that she would propose to file if the default judgment is set aside after counsel now appearing for the defendant filed submissions indicating that she would conduct the case in a manner that departed at least to some extent from her defence and cross-claim that were struck out on 14 June 2024. The defendant has also been given an opportunity to adduce evidence addressing the question of the risk of the registered mortgagee taking action to enforce the mortgage by exercising its power of sale over the property. As I have referred to earlier in these reasons, the only such evidence adduced by the defendant is an affidavit of a law clerk in the employ of the firm of solicitors acting for the defendant, Mr Kelvin Wu. Mr Wu affirmed an affidavit on 19 June 2025 depositing that the defendant told him on that day that she had received “oral approval from Front Financial to enable her to either pay the arrears owing on the existing Westpac mortgage or to fully refinance the Westpac mortgage secured over the property at 6 Queen Street, Croydon Park”. That evidence carries no weight, for the reasons I have already explained. [11]

    11. See [70] and [76] above.

  6. Despite having had an opportunity to do so, the defendant has adduced no evidence concerning the lodgement on 2 June 2025 of the caveats by Beninga Pty Ltd and AOC Finance Pty Ltd.

  7. The defendant has affirmed three affidavits propounding explanations for her default and delay in these proceedings.

  8. In paragraphs 31 to 33 of her affidavit affirmed on 3 October 2024, the defendant deposed:

“31.   My father passed away 22/12/2022. I was very close to my father. In the 6 months or so leading up to his passing I cared for him. This took a lot of time and energy and caused me great stress. Then when he passed copying with the grief and loss has been at times overwhelming, significantly impacting my ability to manage daily responsibilities and obligations. I also have the stress of my single mother’s situation which has created an immense emotional burden. Balancing my own mourning with family demands left me struggling to maintain focus.

32.   As a result, I have not had the capacity to fully attend to these proceedings. The emotional toll and my parental responsibilities have made it difficult for me to engage despite my sincere intention to do so.

33.   I feel much stranger [sic – stronger] and better now. I believe now that I am fully capable of defending the plaintiff’s claim.”

  1. As I have mentioned earlier in these reasons, the defendant did not offer any explanation in her 3 October 2024 affidavit directed specifically to her failure to attend Court on 14 June 2024 for the hearing of the plaintiff’s application for default judgment.

  2. In paragraphs 5 to 24 of her affidavit affirmed on 28 May 2025, the defendant deposed that she was caring for her estranged husband from July 2022, that she was caring for her father-in-law on a full-time basis from August 2022 until his death in December 2022 at the age of 93 years, that she was struggling for a period after that with her own grief and the grief of her children, and that she has chronic liver disease and haemorrhoids. The defendant deposed that she did not fully appreciate the legal implications of the orders made on 14 June 2024, that she became aware of the seriousness of the situation only after seeking legal advice, that this caused her immense stress, and that the application which she then filed on 15 October 2024 to set aside the default judgment “brought me intense anxiety, depression and overwhelming stress” due to the “weight of these proceedings and that I was still sad and grieving [her father-in-law]’s passing”. The defendant deposed that these matters, taken together with the stressful nature of her work as a property developer and unspecified “serious setbacks in my professional life”, overwhelmed her emotionally and mentally. The defendant described herself as “struggling to cope”, unable to provide instructions to her solicitors, and lacking the strength to “properly engage with these proceedings and with other aspects of my life”. The defendant deposed that there were days when she felt scared to look at her phone, and that she was too scared and anxious to read mail that was delivered to her home. The defendant deposes that she now realises that she had “developed mental problems”.

  3. It was not until 16 May 2025 that the defendant consulted her general practitioner, who referred her to a psychologist. The defendant consulted the psychologist on 23 May 2025. The defendant annexed to her 28 May 2025 affidavit a letter from the psychologist to the defendant’s GP stating that the defendant arrived at the appointment 25 minutes late, that she reported low mood, sleep difficulties and “ongoing stress related to two separate instances of being scammed in the past 12 months”, and that she appeared disorganised and reported that she had noticed being more disorganised in response to “the stress from the scam incidents last year”. The psychologist noted that the DASS-21 (which I understand to be a self-reporting scale) indicated extremely severe levels of anxiety, and moderate levels of depression and stress. The psychologist recommended referral to a psychiatrist because the defendant appeared “too disorganised to meaningfully engage in psychological treatment at this time”.

  4. The defendant deposed in her 28 May 2025 affidavit that she wants the opportunity to have the matter heard on its merits, and that she believes that she has the capacity to conduct these proceedings now that she has started receiving ongoing professional help with her mental health.

  5. In her affidavit affirmed on 18 June 2025, the defendant deposed that, at the time these proceedings were commenced in June 2022, she was under significant emotional and physical stress as a result of her caring responsibilities for her estranged husband and for her father-in-law. The defendant deposed that, as a result of that stress, she did not seek legal advice or representation initially. She first sought legal advice from Exodus Lawyers in about October 2022 after her defence and cross-claim were struck out with liberty to re-plead. Those solicitors drafted her defence and cross-claim that were filed and served in February 2023, and continued to represent her until about October 2023 when they ceased acting due to the defendant’s self-described inability to provide them with timely instructions. The defendant deposed that, by December 2023, her physical health and her relationships had begun to suffer with “the stress of everything intensifying” and she was “overwhelmed with the proceedings, as well as my health and relationship issues”. The defendant was nevertheless seeking alternative legal representation. She instructed EGR Law to represent her in another matter in about June 2024, but did not instruct them in these proceedings until about 31 July 2024.

  6. In her 18 June 2025 affidavit, the defendant propounded for the first time an explanation for her failure to appear at the hearing of the plaintiff’s application for default judgment on 14 June 2024. The defendant deposed that:

“… I was so overwhelmed by the pressure of my job, other legal matters, personal and health circumstances that I did not attend Court. Once I had found out about these proceedings, I began discarding my mail and emails without opening it. I could not deal with the guilt of knowing that I had let my emotions take over and had ignored these proceedings. I was terrified that as a result, I would lose my home.”

  1. The defendant deposed that, after instructing EGR Law to represent her on 31 July 2024, she was sometimes able to give them instructions and consider their advice, but there were other days when she struggled to get out of bed and felt completely overwhelmed. There were times when she believed that it was hopeless and that there was no point in continuing to try. She failed to return calls and emails from EGR Law in preparation for a listing of her application to set aside default judgment on 11 October 2024.

  2. The defendant deposed that she “hit rock bottom” in about November 2024 and began consuming up to two bottles of wine a day, and isolating herself from social contact. The defendant deposed that: “I developed severe paranoia and feared answering phone calls, checking emails and opening letters. During this period, EGR Law attempted to contact me on several occasions, but I did not respond.”

  3. The defendant’s 28 May 2025 and 18 June 2025 affidavits do not specifically address her failure to appear at the hearing of her application to set aside the default judgment on 6 December 2024. As I understand the submissions made on behalf of the defendant, she relies on her evidence about hitting “rock bottom” in about November 2024 as explaining that default.

  4. The defendant’s 18 June 2025 affidavit again mentions her referral to a psychologist, who in turn referred her to a psychiatrist. The defendant deposed that she has once again instructed EGR Law to represent her in the proceedings after seeking help and receiving treatment for her illness.

  5. The defendant has not tendered any report or letter from the psychiatrist to whom she says she has been referred. The May 2025 letters that the defendant annexed to her 28 May 2025 affidavit from her general practitioner and psychologist record the defendant’s self-reported complaints and self-assessment, but do not contain any independent opinion diagnosing any particular physical or mental health condition.

  6. Many litigants in this Court have many responsibilities and stressors in their life, and are engaged in legal proceedings at the same time as discharging family responsibilities and professional duties and, in some instances, at the same time as weathering the emotional turmoil that follows difficult life events such as the death of a family member.

  7. The death of the defendant’s father (according to her 13 October 2024 affidavit) or father-in-law (according to her more recent affidavits) in December 2022, and her mourning for him thereafter whilst attending to her family responsibilities, is not a remotely satisfactory explanation for the defendant’s failures to comply with Court orders for the filing and service of evidence from about October 2023 until June 2024. That is all the more so in circumstances where the evidence demonstrates that, during that same period, the defendant was capable of engaging in her property development activities and her cosmetics business, contacting media organisations to seek publicity about these proceedings, making allegations to the Australian Taxation Office against the plaintiff in relation to his dealings with her, corresponding with Justice Peden’s chambers about these proceedings, and corresponding with the plaintiff’s solicitors in relation to the plaintiff’s application for default judgment. [12] I reject the defendant’s evidence that she had a “sincere intention” to engage in these proceedings, but lacked the capacity to do so, during the period from October 2023 to June 2024. That evidence is inconsistent with the defendant’s contemporaneous statements to the plaintiff’s solicitors on 4 June 2024, which make it plain that the defendant had not made time to engage in the proceedings because she had prioritised her business activities. [13]

    12. See [79] and [81] above.

    13. See [79] above.

  8. In the absence of any medical opinion evidence, I reject the defendant’s evidence that, during the period between 14 June 2024 and 6 December 2024, she was unable to properly engage with these proceedings, and even unable to confront correspondence about the proceedings, because she was overwhelmed emotionally and mentally overwhelmed and had developed “mental problems” as a result of her ongoing grief for her father (or father-in-law) and the stress and anxiety associated with these proceedings. The evidence demonstrates that, during that same period from 14 June 2024 to 6 December 2024, the defendant sent lengthy emails to the plaintiff’s solicitors in mid-June and in July 2024 in which she assertively propounded her contentions in these proceedings, instructed EGR Lawyers to represent her in other proceedings in June 2024, instructed EGR Lawyers to represent her in these proceedings from 31 July 2024, entered into loan agreements on about 8 August 2024 and 16 September 2024 which included a charge over the 6 Queen Street property (notwithstanding her knowledge of orders made on 14 June 2024 requiring her to transfer the property to the plaintiff, about which she had obtained legal advice on or about 31 July 2024), and provided instructions to EGR Lawyers in relation to the filing of her first notice of motion to set aside the default judgment and in relation to the preparation of her 3 October 2024 affidavit. [14] The defendant’s ability to do those things is irreconcilably inconsistent with her asserted state of paralysis due to overwhelm in the period leading up to 6 December 2024. There is no medical evidence of “mental problems” during this period.

    14. See [85], [97(3)], [102] and [124] above.

  9. In relation to the period from the dismissal of the defendant’s first application to set aside the default judgment on 6 December 2024 until the filing of her second application on 4 June 2025, I reject the defendant’s evidence that she was “overwhelmed” to the point of being unable to engage in the proceedings and at “rock bottom” in November 2024, in the absence of medical opinion evidence supporting that self-assessment. The defendant’s self-assessment is prima facie inconsistent with the evidence demonstrating that the defendant entered into a further dealing with 6 Queen Street on 23 December 2024, engaged in correspondence with the plaintiff’s solicitors about these proceedings in March 2025 and invited the plaintiff’s solicitors to contact her to discuss the proceedings, and sent a barrage of email correspondence to Westpac, the Australian Taxation Office, the plaintiff’s solicitors, this Court and the High Court in the first half of May 2025 articulating the substance of her position in these proceedings and making allegations against the plaintiff – all before seeking medical help for the first time on 16 May 2025. In addition, the plaintiff was sufficiently engaged with these proceedings to instruct EGR Lawyers to resume acting for her in these proceedings on 20 May 2025 and to work with EGR Lawyers on the preparation of her 28 May 2025 affidavit – before having received any psychological or psychiatric treatment. [15]

    15. See [98], [99], [106], [107], [114] and [122] above.

  10. Importantly, the defendant’s evidence in her 18 June 2025 affidavit that, from the time she found out about these proceedings, she began discarding her mail and emails without opening them, cannot be accepted as truthful. I understand that aspect of the defendant’s evidence as referring to the period after she found out about the default judgment on 14 June 2024. [16] As I have already mentioned, the contemporaneous documentary evidence tendered by the defendant reveals that she was actively engaged in correspondence with the plaintiff’s solicitors, including responding to emails received from them, in relation to these proceedings at times when she was without legal representation, in June and July 2024, in March 2025, and in May 2025. [17]

    16. See [125] above.

    17. See [85], [99] and [106]-[107] above.

  11. For all of those reasons, I do not regard as credible the defendant’s assertion made for the first time in that she failed to attend the hearing on 14 June 2024 because she was “so overwhelmed by the pressure of my job, other legal matters, personal and health circumstances”.

  12. For all of those reasons explained above, the evidence adduced by the defendant does not offer any adequate explanation for her default and delay over a lengthy period of time from October 2023 until the entry of the default judgment on 14 June 2024, or her further delay in seeking to set aside the default judgment during the period from 14 June 2024 until 4 June 2025. In truth, the defendant has had every opportunity to defend these proceedings and prosecute her cross-claim, including the opportunity to set aside the default judgment in December 2024. The defendant has chosen to prioritise her business activities, and has endeavoured to mount a campaign against the plaintiff through the media and via the Australian Taxation Office rather than engaging in these proceedings in a meaningful way. After failing to appear at the hearing of her first application to set aside the default judgment, the defendant sought to enlist Westpac and the Australian Taxation Office to take steps that would effectively prevent completion of the sale contract in accordance with the Court’s orders. During the period of time in which she has been on notice of the Court’s orders requiring her to convey the property to the plaintiff, the defendant has ignored those orders by entering into further dealings with the property which have resulted in the lodgement of additional caveats against the title to the property. The defendant has not offered any explanation for that conduct, save for the evidence of her instructions to the law clerk Mr Wu which carries no weight for the reasons I have already explained.

Prejudice to the plaintiff if default judgment now set aside

  1. The plaintiff has already been prejudiced by the defendant’s default and delay. The plaintiff has had to deal with claims made by serial caveators whose caveats have been recorded against the title to these proceedings after the entry of default judgment on 14 June 2024, several of whom claim interests in the property pursuant to agreements entered into with the defendant after that date. More importantly, the risk of Westpac exercising its power of sale as registered mortgagee gives rise to a risk that the property that is the very subject matter of these proceedings will be lost and the plaintiff’s claims for relief will be rendered nugatory.

  2. The further delay that would necessarily flow if the default judgment were now set aside would compound that prejudice to the plaintiff.

  3. I reject the defendant’s submissions that the prejudice could be addressed by the default judgment being set aside on conditions requiring the defendant to remedy the existing default under the Westpac mortgage and do all things necessary to prevent any further default under that mortgage. There is no evidence that the defendant has the means to remedy the existing default, let alone continue meeting her obligations under the mortgage thereafter. I do not regard the evidence of the defendant’s instructions that she has “oral approval” for a loan to finance her payment of the arrears owing to Westpac or to refinance the Westpac mortgage as carrying any weight, for the reasons I have already explained above. In any event, it would be prejudicial to the plaintiff to be placed in a position of having to endeavour to monitor the defendant’s compliance with such conditions, any breach of which at any time would give rise to a further risk of the property being sold by the mortgagee and the plaintiff’s claim for specific performance being thereby defeated.

  4. I accept the defendant’s submissions that the prejudice that the plaintiff has suffered by reason of the costs of dealing with caveators and the wasted costs of preparing for completion of the sale contract on 9 May 2025 could be addressed by conditions requiring the defendant to pay an amount into Court in respect of those wasted costs. The availability of such conditions has no bearing on the outcome of this application in view of the far greater prejudice arising from the risk of a mortgagee sale of the property.

Conclusion

  1. There is considerable force in the plaintiff’s submission that the defendant’s second application to set aside the default judgment made after failing to appear at the hearing of her first application, in the absence of any material change in circumstances between the first and second applications, is an abuse of process and should be dismissed for that reason: see Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46 (McLelland J); Bajramovic v Calubaquib [2015] NSWCA 139 at [40]-[41] (Emmett JA, Leeming JA and Adamson J agreeing). However, given that the hearing before me was directed to the merits of the second application, I consider that it is preferable to determine it on its merits.

  2. For all of the reasons explained above, the defendant has not established a bona fide arguable defence and cross-claim, and has offered no adequate explanation for her default and extensive delay in seeking to set aside the default judgment. The delay has been prejudicial to the plaintiff, and would be likely to prejudice the plaintiff further if the default judgment were now set aside. In all of the circumstances, neither the interests of justice nor the overriding purpose in s 56 of the Civil Procedure Act and the considerations in ss 57, 59 and 60 of that Act warrant the exercise of the discretion to set aside the default judgment entered against the defendant on 14 June 2024.

  3. Having regard to the defendant’s propensity to enter into agreements encumbering the property, including while on notice of this Court’s orders requiring her to specifically perform the sale contract by conveying the property to the plaintiff, and having regard to the defendant’s communications with Westpac and with the Australian Taxation Office in May 2025 which were calculated to defeat completion of the sale contract in accordance with the Court’s orders, I accept the plaintiff’s submission that it is appropriate to protect the integrity of the Court’s processes for giving effect to the specific performance order by restraining the defendant from taking any further step to deal with or further encumber the property pending completion of the sale contract.

  4. The orders of the Court are as follows:

  1. Order that the defendant’s notice of motion filed on 4 June 2025 is dismissed.

  2. Order that the defendant is to pay the plaintiff’s costs of that notice of motion as agreed or assessed.

  3. Direct that the proceedings are referred to the Registrar of the Court pursuant to order 6 made on 14 June 2024 for the purpose of:

  1. fixing a time, date and place for completion of the contract for sale of land dated 2 December 2021 between the plaintiff (as purchaser) and the defendant (as vendor) in respect of the property known as 6 Queen Street, Croydon Park (folio identifier XX/XXX); and

  2. executing all necessary documents and doing all things necessary on behalf of the defendant in order to specifically perform that contract in accordance with the orders made on 14 June 2024.

  1. Order that the defendant be restrained from taking any further action or steps to deal with or encumber the property at 6 Queen Street, Croydon Park, New South Wales (folio identifier XX/XXX), pending completion of the contract dated 2 December 2021 for the sale of that property by the defendant to the plaintiff in accordance with the orders of this Court made on 14 June 2024.

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Endnotes

Decision last updated: 27 June 2025

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Ashton v Pratt [2015] NSWCA 12
Ashton v Pratt [2015] NSWCA 12
Ashton v Pratt (No 2) [2015] NSWCA 134