State Bank of New South Wales v Ryan

[2001] NSWSC 91

CITATION:	STATE BANK OF NEW SOUTH WALES v RYAN [2001] NSWSC 91 revised - 6/03/2001
FILE NUMBER(S):	SC 18383 of 1993
HEARING DATE(S):	8-9 June 2000
JUDGMENT DATE:	28 February 2001
PARTIES :	Plaintiff: State Bank of New South Wales First Defendant: Thomas Edward RYAN Second Defendant: Anthony Richard RYAN
JUDGMENT OF:	Hulme J at 1

COUNSEL :	Plaintiff: Mr A Bell Defendants: Mr J Young
SOLICITORS:	Plaintiff: Minter Ellison Defendants: Leary & Company
DECISION:	Dissolve the injunction granted by Adams J on 28 May 2000; Declare that the failure of the Cross-Defendants to repay the sum of $500,000 to the Cross-Claimant by 9 June 1999 constitutes a default under the Agreement executed on 17 March 1994; Declare that the Cross-Claimant is entitled to enforce the judgment given on 21 April 1994 by way of the Writ of Possession issued on 10 December 1999; Reserve the question of costs; Stand the proceedings over.

- 18 -

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

NO: 18383/92

Wednesday, 28 February 2001

JUDGMENT

STATE BANK OF NEW SOUTH WALES LIMITED v THOMAS EDWARD RYAN AND ANTHONY RICHARD RYAN

HIS HONOUR:

1    By Summons filed on 30 September 1993, the Plaintiff claimed orders:-

1. That the Plaintiff is entitled to possession of the following land:-
(a) The land situate and known as “Ben Lomond” Tullibigeal, being the whole of the land in Certificate of Title, Volume 15359, Folio 192 and Volume 15365, Folio 246.

2. That the Plaintiff is entitled to issue a Writ of Possession forthwith to enforce the orders for possession.

2    On 21 April 1994 a minute of consent orders was signed by solicitors for the Plaintiff and solicitors for the Defendant. Order 1 was in the same terms as the first prayer in the Summons. The balance of the document was in these terms:-

2. That the Plaintiff is only entitled to issue a writ of possession in the event that the Defendants are in default of the Agreement and Deed entered into between the parties and dated 17 March 1994 to enforce orders for possession, however, in the event the Defendants do not default the Plaintiff to then consent to order 1 being set aside. (sic)
3. Each party to pay their own costs.

3    These orders were entered on 2 December 1999.

A note on the front of the Court file and dated 21 April 1994 shows that orders were made that day by the Prothonatory. Exhibits 1 and C which I do not need to detail provide some confirmation of this. The note reads, inter alia:-

“B/C orders 1, 2 and 3 of Short Minutes F.I.C. today”

(It may be inferred that the abbreviations mean “by consent” and “filed in court”)

4    On 10 December 1999 a Writ of Possession was issued directing the Sheriff to enter the land referred to in the Summons and cause the Plaintiff to have possession of it. (The first parcel was described as the land comprised in Certificate of Title, Volume 15359 Folio 92. I assume this folio reference is but a typographical error but it may need to be dealt with.) On the same day the Court granted leave to the Plaintiff to issue a writ of possession.

5    On 28 May 2000 Adams J granted an interlocutory injunction “pending further order, to the Sheriff and the State Bank of New South Wales prohibiting further action to be taken in connection with the Notice to Vacate dated 23 May 2000 issued to Thomas Edward Ryan and Anthony Richard Ryan in respect of the land comprised in Certificate of Title Volume 15359 Folio 92 and Volume 15365 Folio 246.

6    The matter came before me as Duty Judge on 5 June last and then again on 8 June. On that date the Defendants sought an order that:-

“By way of final relief, the Plaintiff be restrained from taking any enforcement action on the orders of the court entered on 2 December 1999 until a certificate is issued pursuant to Section 11 of the Farm Debt Mediation Act 1994.”

7    Although there was no Notice of Motion, Counsel appearing for the Plaintiff indicated that he had come prepared to meet such an application and the matter proceeded. Later, a Cross-Claim was filed on behalf of the State Bank. The orders sought therein were:-

1(a) A declaration that the failure of the Cross-Defendants to repay the sum of $500,000 to the Cross-Claimant by 9 June 1999, or in the alternative, by 30 June 1999 constitutes a default under the Agreement executed on 17 March 1994.

(b) An order that the Cross-Claimant is entitled to enforce the judgment given on 21 April 1994 by way of the Writ of Possession issued on 10 December 1999.

2. In the alternative:-
(a) A declaration that the failure of the Cross-Defendants to repay the sum of $500,000 to the Cross Claimant by 15 December 1999 constitutes a default of agreement executed on 17 March 1994.

(b) An order that the Cross-Claimant is entitled to enforce the judgment given on 21 April 1994 and entered on 2 December 1999 by the issuance of a Writ of Possession.

8    The principal issues canvassed in the proceedings were three in number:-

(i) Was there default under the Agreement and Deed of 17 March 1994 referred to in the short minutes of order, either in relation to principal or interest?
(ii) Was the debt which arose under that document a “farm debt” within the Farm Debt Mediation Act 1994?
(iii) Did that act operate to preclude or delay the Plaintiff in seeking to enforce its rights?

9    It is therefore necessary to address the terms, and circumstances surrounding the entry into, of the 1994 Agreement and Deed. The Agreement was constituted by a letter of Offer dated 9 March 1994 and an acceptance endorsed thereon dated 17 March 1994. A copy of that document was annexed to the Deed of 17 March. Recitals to the Deed record that at the time it was entered into the Plaintiffs were indebted to the Bank in an amount of the order of $1,056,000 and were in default and that-

“(d) By Letter of Offer … the Bank offered to refinance the Borrower by offering fresh banking facilities totalling $500,000 (“New Debt”) to pay out part of the Existing Debt such facilities to be secured by the securities which secure the Existing Debt AND FURTHER subject to the Borrower entering this Deed and complying with the arrangements contained in the Letter of Offer the Bank offered to forgive an amount of $531,799.97.”

10    The Deed also provided:-

2. FORBEARANCE
2.1 In the event that the Borrower accepts the terms and conditions of the Letter of Offer and the New Debt is established;
(a) the Bank agrees that subject to 2.2 below it shall forebear from making any claim for the Shortfall or taking any action to recover same, and
(b) The Bank agrees that if the Borrower does not default in the performance of their obligations pursuant to this Deed and the Letter of Offer and any security agreement then at the expiry of five years from the date of this Deed the Bank shall be deemed to have released and forever forgiven the Shortfall.
2.2 In the event that within five years of the date hereof the Borrower defaults in the performance of any obligations pursuant to the Letter of Offer or any security document with the result that the Bank exercises its power to enter into legal possession of the security property, or, the borrower enters into a contract to sell the security property within the same period of time then the shortfall and continuing interest, at the option of the Bank, will be immediately due and payable to the Bank and it is acknowledged by the Borrower that this sum is secured and will remain secured under securities currently held by the Bank.
2.3 The Borrower may request that upon the creation of the New Debt the Bank provide a certificate setting out details of the Borrowers indebtedness to the Bank and subject to the satisfactory performance of their obligations pursuant to the Letter of Offer and security agreements the Bank will issue a certificate which shall be prima facie evidence of the Borrowers indebtedness to the Bank and the component parts of that debt.
8.3 No variation, modification or waiver of any provision of this Deed nor consent to any departure by any party therefrom, shall in any event be of any force or effect unless the same shall be confirmed in writing, signed by the parties, and then such variation, modification, waiver or consent shall be effective only to the extent for which it may be made or given.
8.7 Nothing in this Deed alters, varies or restricts the Bank’s rights under existing securities, the Letter of Offer or any security agreement that may secure the Existing Debt, the New Debt or the Shortfall or any variation thereof and the Bank may exercise its rights pursuant to any notwithstanding of this Deed.

11    Parts of the Letter of Offer annexed should also be reproduced. These are:-

GROSS AMOUNT: $500,000
FACILITY: Fixed Rate Term Loan
PURPOSE: Restructure of existing facilities
FEES AND INTEREST Interest - Interest will be calculated on daily balances and charged at … payable half yearly in arrears 30 June and 31 December. Borrower to have the option to “lock in” at the anniversary for any period up to expiry of five year term.
Broken Period Interest - From the date of the draw down until the end of June 1994. Interest calculated on daily balances will be due and payable at the end of June 1994.
REPAYMENT: Payment of interest is payable half yearly over the term of the advance on the 26th day of June/December.
TERM: Five (5) years
TERMS AND CONDITIONS
The terms and conditions upon which the Facilities shall be made available will include:-
Security - that the Facility and all other obligations now and in the future of the Borrower to the Bank shall be secured by the following security (the “Securities”):-
(a) First mortgage from Thomas Edward Ryan and Anthony Richard Ryan over 1,475.5 ha land and improvements, Tullibigeal.
(b) ….
In regard to security (a), customers to allow uncontested summary judgment in favour of State Bank on the understanding that the Bank will not enforce judgment unless facility is in default and such default is not adjusted within 30 days of default occurring.
Settlement - prior to or on settlement of this facility borrower is to effect a $25,000 reduction on their existing facilities.
Unpaid balance - the balance of the borrowers existing facilities which remain unpaid upon drawdown on the facilities shall remain due and owing to the Bank by the borrower subject to the following:
(a) Upon expiry of five years from the date of settlement of the facilities and subject to clause (b) below the Bank agrees to refrain from requiring repayment of the balance or any interest or costs accruing in respect thereto and shall at the expiry of the said period write off and forgive the balance and be deemed to have done so;
(b) ….
EARLY TERMINATION INTEREST ADJUSTMENT
A. Where the interest rate on any Loan is faxed for a period of time comprising all or part of the term (“Agreed Period”), the Borrower shall not repay all or any part of the principal sum before the date on which that principal sum is otherwise due and payable unless the Bank’s prior written consent has been obtained by the Borrower.

12    It would seem that there was some delay in some or all of the implementation of the arrangement evidenced by the Agreement. Although it probably does not matter, this may have been due to delay by the Defendants in payment of the $25,000 referred to in the Deed. On 1 June 1995, the Bank wrote to the Defendants as follows:-

We refer to your letter dated 21 May 1995 received on 29 May 1995, and advise that we are attempting to have our Administration correct the abnormalities with your account. The problem is that interest for the period 9 June 1994 to 29 December 1994 has not been raised as the account was not opened during this period.
We set out hereunder a manual calculation of the account following your payment of $25,000 on 15 December 1994:

Approved Restructure $500,000.00
Interest to 29/12/94 (203 days @ 6.85%) $19,048.63
$519,048.63
Your payment 29/12/94 $19,048.63
$500,000.00
FID charged 30/12/94 (unpaid) $26.42
$500,026.42

Debit Administration Fee charged on 31 March 1995 has been refunded, this fee was waived in the original approval.
Whilst the Bank agreed to your request for settlement of the restructure to be backdated to 9 June 1994 to avoid default under the court orders, it was not prepared to allow the concessional interest rate of 6.85% to apply for 12 months. Interest rate applicable for the period 29 December 1994 to 9 June 1995 is 10.45% The following amount is due for payment on 9 June 1995 and we remind you that if payment is not received by that date, default under the restructure agreement will occur.
Period 29/12/94 to 9/6.95
162 days x $500,000 x 10.45% $23,190.41
FID $39.33

$23,229.74

I also remind you that interest rate is to be reset on 9 June 1995.
…

13    Mr Anthony Richard Ryan asserted in his affidavit that “during the five years from March 1994 to March/June 1999 interest was always paid on respect of the loan on the due dates. There was some cross-examination on the topic of interest payments during and since 1999 and Mr Ryan conceded that, apart from a payment of $20,000 in January 2000, the previous interest payment was a sum of about $18,000 in January 1999, on account of interest for the period from June to December 1998. Mr Ryan asserted that during the time when he was discussing with the Bank the re-financing of the loan, “we were to leave the interest until the re-finance was to take place. Mr Boxell, the Account Manager involved, disagreed that there was any such agreement and asserted that, if there was any formal commitment to defer interest, it would have been confirmed in writing.

14    Records of the relevant account attached to an affidavit of Mr David Boxell indicate that interest in the sum of $14,702.90 for the period from 4 January to 8 June 1999 was debited on 9 June and, subject to the impact of the $20,000 referred to there was not then any payment of this sum.

15    In light of the other issues which arose in the case this topic was not pursued as fully as it might have been but I incline to the view that Mr Boxell’s evidence in this regard is more probable. In reaching that conclusion, I do not rely on the demeanour of either witness. There was nothing in the demeanour of either which cast doubt on his credibility. Rather do I rely on the earlier history and correspondence in early 1999. In light of those matters I would be confident that the Bank wanted to be paid as much and as soon as possible. This is not inconsistent with some informal arrangement that, faced with a prospect of the whole debt being re-financed, the Bank may have been content to defer pursuit of interest for some period. The Bank clearly did so.

16    The $20,000 payment in January 2000 followed correspondence and discussions between the Bank and the Defendants directed to the topic of the Bank allowing the Defendants further time to put their affairs in order and seems to have been a condition of the Bank doing so. Although there is some evidence suggesting that the amount may have been applied by the Bank towards re-payment of principal, I do not need to reach any final conclusion on this issue. Other terms insisted on by the Bank as conditions for its indulgence were not met.

17    On 20 January 1999, the then Account Manager concerned with the Defendants’ account wrote to them confirming “satisfaction of six (6) monthly Term Loan commitments due 31 December 1998 via deposit … in an amount of $18,003.14 received 15 January 1999” and saying that he looked forward to hearing from them in relation to the expiry of the Agreement arrangements and discharge of their obligations to the Bank. On 2 March he wrote again confirming that the arrangements were due to expire on 9 June “when the agreed sum of $500,000, plus interest for the period from 1 January to date of payment, is due and payable”. A similar letter followed on 4 May although it referred to 6 June as the date when payment was due.

18    On 26 May, the Bank wrote to a third party who had the Defendants’ consent to discuss the matter with the Bank and was involved with the possibility of re-financing the loan and indicated that the Bank was prepared to allow until the end of June for settlement. On 5 July the Bank wrote to the Defendants observing that repayment had not occurred, and asserting that the Defendants were thus in default and threatening to enforce its rights including those under the consent orders for possession.. The letter recorded that interest of the period ended 30 June in the sum of $17,750.53 had been charged.

19    There was evidence of further correspondence later in the year, of an agreement for auction of the subject property, and evidence which suggested that one or more of the Defendants may not have adhered to the agreement which had been made in this regard. There was also complaint that the Bank had put difficulties in the way of raising alternative funds. However, these matters also may be put to one side. Though they may have been relevant to the exercise of a discretion to grant an interlocutory injunction, the parties agreed that I was to determine the proceedings on a final basis.

20    I turn then to the question whether the Defendants are, within the terms of the Short Minutes of Order, “in default of the Agreement and Deed … dated 17 March 1994”.

21    There was not expressed in the Deed itself, as distinct from the letter of 9 March attached, any obligation to pay principal or interest. Rather did the substantive provisions of the Deed define what would be the consequences of absence of default and what would or might, at the option of the Bank, be the consequences of default. In the event of no default, then under clause 2.1 (b) “at the expiry of five years from the date of this Deed the Bank shall be deemed to have released and forever forgiven the Shortfall”. If there was default within five years of the date of the Deed and the Bank exercised its power to enter into possession, then the Shortfall and interest would, at the Bank’s option, be immediately due and payable.

22    It is to be noted that the 5 year period referred to in clause 2.1 and 2.2 was expressed to be from or of the date of the Deed and thus expired on 16 or 17 March 1999. The Bank did not suggest that there was any default prior to that date. (It might be noted that the provisions in the Letter of Offer as to forgiveness of the shortfall are expressed in terms of the 5 years from the date of settlement but I need not pursue this difference.)

23    The events which the Bank did rely on was the failure to repay the principle sum on either 9 or 30 June or 15 December 1999 and the failure to pay interest in June of that year. So far as principal is concerned, it is clear that the loan referred to in the letter was for 5 years and although the letter does not in terms state the commencement date of that period, the references to “settlement” and “drawdown” make it plain that that was the date from which the 5 year period under the letter of offer should be calculated. Indeed, so far as the Letter of Offer is concerned, no-one suggested the contrary.

24    The letter of 1 June 1995 indicates that in fact “settlement” or drawdown did not occur until 29 December 1994. Nevertheless in its reference to the “restructure (being) backdated”, the last paragraph of the letter evidences an agreement that settlement should be treated as having occurred on 9 June 1994. There is nothing in the terms of the Deed or letter of offer to preclude such a subsequent agreement being given effect to. There was no evidence casting any doubt on the existence of such an agreement and accordingly it should be allowed to operate in accordance with its terms. “Settlement” and the commencing date to the 5 years referred to in the letter of Offer is to be taken to be 9 June 1994.

25    In that last paragraph, I have said that the date of actual drawdown was 29 December 1994. Paragraph 2(a) of the Bank’s Cross-Claim referred to 15 December 1999. This is the anniversary of the date when, according to the letter of 1 June 1995, the Defendants seem to have paid the sum of $25,000. However if, as the letter says, “the account was not opened during (the) period” to 29 December 1994, it is the 29th rather than the 15th which seems to me to be correct.

26    There was nothing in the Letter of Offer which expressly required the Defendants to repay the principal sum at the expiration of the term of the loan. Whether any of the “Securities” referred to in that letter (assuming they were executed) did so, it is unnecessary to pursue for they were not tendered.

27    It was submitted by counsel appearing for the Bank that a term obliging repayment of principal at the end of the term should be implied. BP Refinery (Western Port) Pty Limited v Shire of Hastings (1997) 180 CLR 266 was relied upon, it being submitted, inter alia, that such a term was necessary to give business efficacy to the contract. The argument to the contrary was that such implication was unnecessary: Independently of any contract, the law implied an obligation to repay money lent or received to the use of another.

28    In my view the Bank’s argument is to be preferred. Although I would accept that the law did imply an obligation to repay, the obligation arose from an implied contract to this effect - Yates v Aston (1843) 4 QB 182; 114 ER 866, approved in Mathew v Blackmore (1857) 1 H & N 763, 156 ER 1409.

29    Thus the failure to repay the principal sum at the end of the 5 year term constituted default under the Agreement and in consequence under the Deed and the short minutes of order.

30    There was also default in the payment of interest in about June 1999. There was of course the credit in 14 January 2000 in the sum of $20,000 but even if that payment should, in accordance with what Mr Boxall said was the Bank’s usual practice, be treated as a payment on account of interest, it would not prevent the Defendants’ failure to pay the interest accruing to early June at about that time from being a default under the Letter of Offer. (I have used the term “about”. Over the term of the loan the parties seem to have been content for payment to occur at about the time interest was due and not on the 26th of June and December as provided for by the Deed. However, in light of the conclusions I have reached it is unnecessary for me to pursue the question of the precise date on which any default in the payment of interest occurred. In that regard, the matter may be also complicated by the arrangements recorded in the letter of 1 June 1995)

31 I turn then to the issues arising under the Farm Debt Mediation Act, 1994. The Act was assented to on 12 December 1994 and by s2 it commenced “2 months after the date of assent, except in so far as commenced sooner by proclamation”. It is unnecessary to pursue the issue of whether there was any such proclamation.

32    So far as is presently relevant, sections 4, 5, 6, and 8 of the Act provide:-

s4(2) This Act extends to:
(a) a farm mortgage that was entered into before the commencement of section 6; and
(b) a liability or obligation that arose under a farm mortgage before the commencement of section 6.

5 (1) This Act applies in respect of creditors only in so far as they are creditors under a farm debt.
6 Enforcement action taken by a creditor to whom this Act applies otherwise than in compliance with this Act is void.
8 (1) A creditor to whom money under a farm mortgage is owed by a farmer must not take enforcement action against the farmer in respect of the farm mortgage until at least 21 days have elapsed after the creditor has given a notice to the farmer under this section.

33    It was common ground that the Bank had not given notice as envisaged by section 8. It was the Bank’s contention that it was not a creditor under a “farm debt”, and its action in seeking or causing the issue of a writ of possession was not “enforcement action” as those terms are defined in the Act.

34    Originally, these terms were defined as follows:-

“enforcement action” in relation to a farm mortgage, means taking possession of property under a farm mortgage, the sale of property under a farm mortgage, or any other action to enforce a farm mortgage including the continuing of action already commenced to enforce a farm mortgage but does not include:
(a) the completion of the sale of property held under a farm mortgage in respect of which contracts were exchanged before the commencement of section 6; or
(b) the enforcement of a judgment that was obtained before the commencement of that section:
“farm debt” means a debt incurred by a farmer for the purposes of the conduct of a farming operation that is secured wholly or partly by a farm mortgage.

35    By the Farm Debt Mediation Amendment Act, 1996 the definition of “enforcement action” was changed but not materially for present purposes.

36    In support of the proposition that it was not a creditor under a “farm debt” the Bank pointed to the purpose of the facility recorded in the letter of 9 March 1994 and to an agreement of Mr Ryan while in the witness box to like effect. However, it is necessary to look further. Mr Ryan gave evidence that prior facilities (pursuant to which the indebtedness of the order of $1,000,000 existed at the time the arrangements of March 1994 were entered into) was incurred for farming operations.

37 And it is to my mind clear that, although the moneys covered under the documents and “facility” of March 1994 were treated separately from the indebtedness existing previously and the balance of that indebtedness after the moneys encompassed within the facility were deducted, those moneys were still part of the same debt incurred for purposes of the conduct of a farming operation. Certainly against the context of the Farm Debt Mediation Act, what amount to book entries by a bank opening another account, debiting it with a sum and crediting that same sum to an earlier account do not lead to the creation of a new debt. And the fact that there may be an arrangement recording or establishing a new “facility” does not in my view, alter the situation.

38    I am also of the opinion that there is much to be said for the view that even if a new debt is incurred for the purposes of paying off an old debt which is incurred for the purposes of the conduct of a farming operation and the payment of which is necessary if that farming operation is to continue, that new debt is itself a debt “incurred for the purpose of the conduct of a farming operation”. The fact that discharge of the old debt was one of the purposes for which the new debt is incurred does not preclude the existence of other purposes. However, I do not need to finally determine this issue.

39 The second issue raised under the Farm Mediation Act must however be determined in favour of the Bank. I have set out the definition of “enforcement action”. It is clear that by reason of the Prothonotary’s order made on 21 April 1994, the Bank obtained judgement in the proceedings before the date of assent to that Act. By virtue of Part 40 rule 3 of the Supreme Court Rules, a judgement takes effect “where it is given in Court - as of the date on which it is given”.

40    The obtaining, and the issue, of a writ of possession in December 1999 was but the enforcement of the judgment obtained in April 1994 and thus, by reason of the terms of paragraph (b) of the definition of “enforcement action”, was not such an action. It was thus not within the prohibition and avoidance provided for in sections 6 and 8 of the Act.

41    The conclusions at which I have arrived mean that the Defendants’ claim for an injunction restraining enforcement action must be refused and the existing injunction must cease. The Plaintiff is entitled to declarations:-

(i) that the failure of the Cross-Defendants to repay the sum of $500,000 to the Cross-Claimant by 9 June 1999 constitutes a default under the Agreement executed on 17 March 1994.

(ii) An order that the Cross-Claimant is entitled to enforce the judgment given on 21 April 1994 by way of the Writ of Possession issued on 10 December 1999.

42    Although costs have not been argued, there is, subject to one matter to which I shall refer, nothing in the proceedings to justify any departure from the usual rule that the loser should pay the successful party’s proper costs. However the documents with which the Court was provided seem to me to suffer from the unnecessary duplication which has now become a feature of litigation in this state. Thus there were exhibited to Mr Boxell’s affidavit of 5 June 2000-

(i) a copy of the summons and of the affidavit filed in support,
(ii) a copy of the affidavit of service of those documents, happily omitting a further copy of them,
(iii) a further copy of the Deed and Agreement, one copy having already been annexed to Mr Boxell’s affidavit of 3 December 1999,
(iv) a copy of the short minutes of order,
(v) a copy of the Court’s orders entered on 2 December 1999, and
(vi) a copy of the writ of possession.

43    The original or a copy of all of these documents was already on the Court’s file as the most elementary knowledge of the Court’s practice would reveal. As presently advised, I cannot conceive of any legitimate justification for making further copies exhibits to Mr Boxell’s affidavit.

44    Apart from the unnecessary costs of preparation of those copies and incurred in the preparation of Mr Boxell’s affidavit, the course followed is one calculated to increase the costs of other parties to the litigation, for example, in causing them to peruse again or copy, say for counsel, such documents. Alternatively costs may be incurred in considering whether there is, and the extent of, duplication, and in making judgments on those issues. It may be that time, and therefore costs, will now need to be spent in considering the costs to the Defendants or their legal representatives flowing from this unnecessary duplication.

45 Legal costs are a great burden on litigants. Members of the legal profession have a responsibility to ensure that they are not incurred unnecessarily. The last few paragraphs of these Reasons should be regarded by the solicitors for the Bank as notice that I am considering making them personally responsible for the costs of, and flowing from, the matters to which I have referred - see Supreme Court Act s76C and Part 52A, r43. I will stand over the proceedings for a short period to enable consideration of this issue.

46    Accordingly the orders I make today are:-

(i) Dissolve the injunction granted by Adams J on 28 May 2000

(ii) Declare that the failure of the Cross-Defendants to repay the sum of $500,000 to the Cross-Claimant by 9 June 1999 constitutes a default under the Agreement executed on 17 March 1994.

(iii) Declare that the Cross-Claimant is entitled to enforce the judgment given on 21 April 1994 by way of the Writ of Possession issued on 10 December 1999.

(iv) Reserve the question of costs.
(v) Stand the proceedings over until 13 March next.

Last Modified: 03/07/2001