Talston Pty Ltd v Daisley
[2004] VSC 23
•23 January 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
No. 5459 of 2003
| TALSTON PTY LTD | Plaintiff |
| v | |
| GAIL DAISLEY | Defendant |
JUDGE: | KAYE J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 23 January 2004 |
DATE OF JUDGMENT: | 23 January 2004 |
CASE MAY BE CITED AS: | Talston Pty Ltd v Daisley |
MEDIUM NEUTRAL CITATION | [2004] VSC 23 |
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Stay on execution of judgment
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J.W. Kewley | |
| For the Defendant | Mrs Daisley John McLoughlin | In Person Victoria Legal Aid |
HIS HONOUR:
In this matter the plaintiff, Talston Pty Ltd ("Talston") has issued a summons seeking orders, among other matters, that the defendant's undertaking recorded in the order of the Chief Justice dated 27 November 2003 be immediately reinstated and that the order for possession contained in paragraph 2 of the order of Master Wheeler dated 13 October 2003 also be immediately reinstated.
I shall briefly set out the background circumstances relating to the application by the plaintiff. In May 2002, Talston advanced a sum of $640,000 to one Geoffrey Borch. That loan was secured by a mortgage granted by Borch to Talston over a property known as Eramosa Lodge, 216 Eramosa Road, West Moorooduc.
On 28 June 2002, Borch and the defendant, Mrs Gail Daisley, executed a document which is entitled "Irrevocable Lease Agreement". By that document Mr Borch purported to lease the property to the defendant, Mrs Daisley, for a period of two years from 28 June 2002. The document provided for payment of rent of $2,000 per month.
In September 2002, Mr Borch defaulted on the mortgage. Talston thereupon served a notice to pay. In the meantime, on 7 June 2002 the defendant executed a document in the form of a contract for the purchase of the land from Mr Borch, and the contract stated the purchase price to be $850,000.
The present proceedings were issued by Talston against the defendant in April 2003. By those proceedings Talston claimed possession of the land from the defendant.
By a summons dated 22 August 2003 the plaintiff made application for summary judgment against the defendant. That application came before Master Wheeler, who, on 13 October 2003, made the following orders, in substance:
1.That the plaintiff be relieved from the requirement to serve a copy of all documents on which it relied before the hearing.
2. That the plaintiff recover possession of the land.
3.That the defendant pay the plaintiff's costs of the proceedings including costs of that summons.
4. There be a stay of execution until 13 November 2003.
What is relevant to the application before me is really the events that have occurred since date. On 13 November 2003 the defendant issued a notice of appeal. On the same day she came to this Court and obtained an ex parte order from Hansen, J. that the time for her appeal be extended. The appeal came on for hearing before the Chief Justice on 27 November 2003. On that day the defendant, it appears, was represented by counsel. As I understand it, the matters in issue between the parties were resolved. As a result of that resolution, the defendant gave undertakings to this Court, presumably through her counsel, and her Honour made orders by consent. Those undertakings were as follows. The defendant by her counsel undertook -
1.Not to make any further applications to set aside or appeal against the order of possession made by Master Wheeler on 13 October.
2.In the event of the mortgage not being discharged or transferred to the defendant on or before 4 p.m. on 19 December, the defendant shall by 4 p.m. on 19 December vacate the property the subject of the mortgage and deliver up vacant possession of the same to the plaintiff free of all sub-tenancies.
The orders by consent, recited upon receipt of those undertakings, were as follows:
1.The defendant's appeal against the order for possession by Master Wheeler be dismissed.
2.The defendant pay the plaintiff's costs of the appeal on an indemnity basis.
3.That the stay ordered by Master Wheeler on 13 October 2003 be extended to 19 December 2003.
There are thus three important features of the orders made by consent by the Chief Justice on 19 December. Firstly, there was a dismissal and final resolution of the appeal against the orders for possession by Master Wheeler. Secondly, the stay which had been previously ordered by Master Wheeler was extended to 19 December 2003. Thirdly, the defendant made an undertaking to this Court that in the event that the mortgage was not discharged or transferred to her on or before 19 December, she would by 4 p.m. on 19 December vacate the property.
It is really the events of 19 December 2003 which bring the parties to this Court, and in fact brought them first before me on Wednesday 21 January. On 19 December the defendant made an application to this Court which was heard by Mandie, J. The application was made on summons dated 19 December. There was apparently an affidavit before the court sworn on 18 December by the defendant. Although the materials were apparently served by the defendant on the plaintiff on that day, it seems clear that the materials did not come to the attention of the plaintiff until some time after the matter had been disposed of by Mandie, J. The defendant appeared in person before Mandie, J. and obtained orders the relevant ones of which are as follows:
1.That there be a stay granted to the defendant on her obligation to perform her undertaking recorded in the order of the Chief Justice dated 27 November 2003 until further order.
2.That there be a stay of execution on the order for possession contained in paragraph 2 of the order of Master Wheeler dated 13 October 2003 until further order.
In other words, the defendant was released temporarily from her undertaking to vacate the premises by 19 December and the stay was temporarily extended until further order.
The plaintiff now comes to this Court seeking reinstatement of the stay. It did initially seek reinstatement of the undertaking. Mr Kewley properly pointed out on behalf of the plaintiff that it was otiose to seek the undertaking since the time for its performance had already expired. In essence, the question which is before me now is whether the plaintiff should be at liberty to enforce the judgment which it obtained from Master Wheeler on 13 October and in respect of which there have now been a number of stays.
Rule 66.16 of the Rules of the Supreme Court is general in its expression and simply states that the Court may stay execution of judgment. The authorities recognise that under that rule the Court has a wide discretion: see, for example, Joskovitz v. Bonnick[1]. It is well recognised that the circumstances which relate to the issue of whether or not a stay should go must be matters relating to the enforcement of the order and must not be matters that go to the correctness of the order: see, for example State Bank v. Parry[2]. Indeed, Mrs Daisley fully and properly appears to have recognised that principle and only advanced matters relating to the enforcement and not the validity of the order.
[1][1964] V.R. 654 at 656.
[2](1989) W.A.R. 242 at 244.
The basis upon which Mrs Daisley seeks a further stay, and indeed sought the stay before Mandie, J., was that she had access to finance by which she might pay out the mortgage and ultimately, it seems, purchase the property from Mr Borch, subject to a mortgage from the ultimate financier of that pay-out.
As I have already stated, the matter first came before me last Wednesday, on 21 January 2004, in the Practice Court. In submissions before me on that day and again this morning, Mr Kewley, on behalf of the plaintiff, demonstrated to me that on a number of previous occasions Mrs Daisley has made representations or statements to the effect that she would be able to effect pay-out of the mortgage, and those representations have not come to fruition.
When the matter came before me on 21 January the defendant, Mrs Daisley first appeared before me without representation. She outlined to me that she wished to have a further stay in order to be able to put before me some material which would persuade the Court that she did have access to finance which would enable her to pay out the plaintiff and herself purchase the property. After the luncheon adjournment, Mr John McLoughlin, a solicitor for the Legal Aid Commission, was good enough to come to court and appear on behalf of the defendant. Some further brief argument occurred between the parties as to whether, first, there should be further adjournment and, secondly, as to whether a stay should be granted in any event. Ultimately, after that short argument, it became clear that the defendant needed to have a short adjournment to enable her to put before the Court evidence as to the availability to her of the financial means by which she might discharge the debt which is the subject of the plaintiff's mortgage. Accordingly I granted an adjournment to this day's date. In granting that adjournment I made it clear to Mr McLoughlin, and importantly to the defendant, Mrs Daisley, that the purpose of the adjournment was to enable Mrs Daisley to provide first-hand evidence of her ability to effect repayment of the debt owing to the plaintiff should any further short stay of the judgment be allowed. I made it clear to Mrs Daisley that it would not be sufficient for her to rely on hearsay material or, more particularly, on material that simply lacked cogency and thus could not provide the Court with any satisfaction that, if a further stay was provided, she would be able to pay out the debt. It was based on those propositions that a short adjournment was permitted until today. I specifically directed that any further affidavit material on which Mrs Daisley wished to rely should be filed and served no later than 4 p.m. on 22 January.
The matter came before me today. No further affidavit material had been filed and served by Mrs Daisley. The defendant had faxed to the plaintiff a letter from apparently her insurance broker, Mr Bourke, of AMP Centre, which itself contained a faxed letter from Makins International PVT Ltd. That document purports to be signed by Mr Chowderey from offices in Islamabad, Pakistan. I received the letter subject to objection from the plaintiff. The terms of the letter are as follows:
"Dear Mr Ted Bourke,
That Mrs Gail Daisley has applied for a loan of $A800,000 to transfer a first mortgage of a property known as Eramosa Lodge, 216 Eramosa Road, East Moorooduc, Victoria, Australia. Subject to a satisfactory valuation and documentation, this loan has been agreed to in principle. We require a transfer of mortgage to be prepared and the pay-out figure. This will take approximately six weeks to finalise. If you can have these items prepared and arrange a date for the settlement it would be appreciated."
Against the objection of the plaintiff and with some hesitation, I am prepared to admit that letter in evidence, but equally it is clear that it lacks much force or persuasion, given the fact that it is not supported by affidavit. Secondly and more importantly, I am concerned that the letter is in general terms. It is clear from the face of it that no valuation of the property has been carried out by the intending lender. It is not clear to me whether the lender has made any realistic assessment of Mrs Daisley's ability to service the loan, and thus as to whether ultimately the lender would be prepared to take the risk and forward the funds to Mrs Daisley should I grant a stay. Thus, the letter provides to the Court little material upon which the Court could be properly satisfied that, if yet another stay was provided, that stay would be useful in terms of enabling the defendant to pay out the loan and satisfy the debt owing to the plaintiff.
Mr Kewley has pointed out to me, correctly, that it appears this is not the first time that representations have been made by Mrs Daisley that she had effectively in her hands the means by which to pay out the mortgage debt. It is sufficient to refer briefly to two incidents when that has previously occurred. My attention was drawn first to a letter provided by Mrs Daisley to the plaintiff's solicitors, apparently in January 2003, in which she represented, in substance, that she intended to settle on the contract of purchase that she had with Mr Borch, which she said was an unconditional contract of sale. As I understand it, that contract was due to settle in May of 2003. It seems plain that that optimistic intention never came to reality. Secondly, and more recently, Mrs Daisley has represented, both by a letter dated 6 October 2003 to the plaintiff's solicitors and in the course of a telephone conversation which occurred on 8 October 2003, that she would be able to pay out the loan by December 2003. Again, that optimistic prediction did not result in the pay-out of the loan.
It is well established that prima facie a plaintiff who obtains successfully a judgment from this Court is entitled to enforce it. Otherwise the process of this Court would be irrelevant to the citizens of this State which came before it. The onus does lie on the defendant to satisfy the Court, by proper material, that the defendant ought to be granted the indulgence of the stay to enable her to satisfy the rights of the plaintiff without prejudice to the plaintiff and without undue delay. The defendant has had a number of stays, first from Master Wheeler in October, secondly from the Chief Justice in November, and thirdly from Mandie, J. in December. None of those stays have enabled the defendant, no doubt despite all of her best efforts, to finance and pay out the debt owing to the plaintiff. I do not intend to enter into issues of credibility. For the purposes of considering this matter I will accept that Mrs Daisley is genuine in her attempts to pay out the debt on the property and to make best efforts in order to obtain it so that she can conduct what I understand to be a horse breeding business there. The problem is that those best intentions simply have not resulted in discharge of the loan which is the basis of the judgment held by the plaintiff against her.
As I have stated, regrettably I find the material put before me today deficient and it does not persuade me, particularly in light of prior events, that if I were to grant a further stay of any length at all the defendant would be in any better position to pay out the plaintiff and thus satisfy the plaintiff's legitimate legal rights.
The question then is: what is the prejudice to the defendant if I do refuse any further stay and accede to the plaintiff's application to reinstate the orders of Master Wheeler? As pointed out by Mr Kewley, the defendant will be in a position to bid at auction when the property is put to auction. As I understand it, the auction processes, as a matter of common sense, will not occur immediately. The defendant during that period of time will have the time, and hopefully the ability, to mobilise finance so that if she genuinely has the capacity to pay out the plaintiff she will be able to do so. The only residual prejudice to the defendant, as I understand it, is that an order for possession will result in disruption of the business that she conducts at the property. That disruption is regrettable. It is an inevitable consequence of the plaintiff having rights which have already been upheld by this Court. In the course of argument I suggested to Mr Kewley that he ought to obtain instructions to undertake that his client would not enforce the judgment for a short period of time, hopefully to enable Mrs Daisley to at least remove her clients' horses from the premises in a manner which is of least inconvenience to those clients, and I am prepared to accept that undertaking.
At the end of the day, for the reasons I have set out, I am not prepared to grant any further stay to Mrs Daisley of the judgment obtained by the plaintiff in October. I therefore propose to grant orders sought by the plaintiff.
(Discussion ensued.)
HIS HONOUR:
On the plaintiff by its counsel undertaking to take no steps to enforce its order for possession made 13 October 2003 for seven days from this date, I order that the stay ordered by Clause 2 of the order of Mandie, J. dated 19 December 2003 be vacated.
(Discussion ensued re costs.)
HIS HONOUR: I am ill disposed to order indemnity costs in the circumstances, Mr Kewley. I understand what you are putting, but I will order costs on a party-party basis. Order that the defendant pay the plaintiff's costs.
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