Zorbas v Titan Properties (Aust) Pty Ltd

[2005] NSWSC 440

CITATION:	Zorbas v Titan Properties (Aust) [2005] NSWSC 440
HEARING DATE(S):	5/5/05, 10/5/05 & 11/5/05
JUDGMENT DATE :	5 May 2005
JURISDICTION:	Equity
JUDGMENT OF:	Campbell J
DECISION:	Further order to be made

CATCHWORDS:	CONVEYANCING - vendor's order for specific performance - procedures for enforcement - whether mandatory to give a defendant who has failed to comply with an order for specific performance further time before enforcement proceedings are initiated - powers of court to extend time for compliance with an order for specific performance - PROCEDURE - "four day orders" - status in NSW procedure - EVIDENCE - burden of proof - of lack of utility of making an order for specific performance
LEGISLATION CITED:	Real Property Act 1900 Supreme Court Act 1970
CASES CITED:	ANS Nominees Pty Ltd v Beverly Manufacturing Co Pty Ltd [1979] 2 NSWLR 875 Buckman v Rose (1980) 1 BPR 9558 Kirkpatrick v Kotis [2004] NSWSC 1265 Liemann v Rightside Properties Ltd (1973) 229 Estates Gazette 1347 McMahon v Cooper (1903) 20 WN (NSW) 220 Morgan v Brisco (1885) 31 Ch D 216 Morgan v Brisco (1886) 32 Ch D 192 Palmer v Lark [1945] 1 Ch 182 Pasedina (Holdings) Pty Ltd v Khouri (1977) 1 BPR 97046 Singh v Nazeer [1979] Ch 474 Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245 Turner v Oates Properties Pty Ltd [2004] NSWSC 732 Zorbas v Titan Properties (Aust) [2005] NSWSC 213
PARTIES:	Peter Zorbas - Plaintiff Titan Properties (Aust) Pty Ltd - First Defendant Delta Constructions (Aust) Pty Ltd - Second Defendant Titan Projects Pty Ltd - Third Defendant
FILE NUMBER(S):	SC 5505/04
COUNSEL:	A J McInerney - Plaintiff D Howen - First Defendant (amicus curiae)
SOLICITORS:	Magney & Magney - Plaintiff Sage Solicitors & Accountants - First Defendant (amicus curiae)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

THURSDAY 5 MAY 2005

5505/04 PETER ZORBAS v TITAN PROPERTIES (AUST) PTY LIMITED & ORS

JUDGMENT – Ex Tempore (Revised 5 May 2005)

1 HIS HONOUR: On 14 March 2005 I gave a judgment in this matter which made orders for specific performance of a contract for sale of land, at the suit of the vendor: Zorbas v Titan Properties (Aust) [2005] NSWSC 213. The orders made on that occasion were in the form asked for by the plaintiff. The precise form of those orders was as follows:

“THE COURT DECLARES THAT:
1. The contract for sale made between the plaintiff as vendor and the first defendant as purchaser on 28 April 2004 in respect of property of the plaintiff situated at 38 and 40 Edgbaston Road, Beverley Hills, NSW being Folio Identifier Nos. 1/872208 and 2/872208 (‘the property’) is valid and enforceable.
THE COURT ORDERS THAT:
2. The agreement dated 28 April 2004 between the first defendant as purchaser and the plaintiff as vendor be specifically performed and carried into execution.
3. On 4 April 2005 at 3 pm the first defendant do attend at Gadens Lawyers, Skygardens Building, 77 Castlereagh Street, Sydney, NSW, 2000 to do all things necessary to complete the said contract for the purchase of the property and to pay the plaintiff the sum of $1,050,000.00 (plus interest to that date in accordance with Special Condition 32) upon settlement.
4. The Plaintiff be at liberty to apply.
5. The first defendant pay the plaintiff’s costs of the application for expedition, and the determination of the preliminary question.
6. This Order be served (a) in the first instance by facsimile to the first defendant’s solicitors Sage Solicitors, 5-7 Parramatta Road, Fivedock (9716-5544) by 5pm today, 14 March 2005 (b) personally at the registered office of the first defendant as soon as possible and in any event by noon 15 March 2005.
7. This order may be entered forthwith.”

2 I am satisfied that the orders were served on the first defendant, as required by the orders themselves.

3 On 4 April 2005, the plaintiff’s solicitor attended at the time and place which had been appointed for settlement. The first defendant’s solicitor failed to attend. The plaintiff’s solicitor then sent a facsimile to the solicitor for the first defendant noting that no one from the first defendant had attended, and that the plaintiff intended to have the matter re-listed. The letter stated that the matter would be re-listed “… to seek further orders against your client due to its failure to complete the said Contract for Sale.”

4 An appointment was obtained for re-listing the matter today. The obtaining of that appointment was notified to the first defendant at the first defendant’s registered office, and also to the first defendant’s solicitor (who is also the solicitor on the record for the second and third defendant), and to each of the two directors of the first defendant.

5 A receiver and manager has been appointed, on 1 April 2005, to the property of the first defendant. The appointment appears, from the notification given to ASIC, to be pursuant to a deed of fixed and floating charge given by the first defendant. The receiver and manager appointed under that charge was also notified of today’s listing.

6 Mr Howen of counsel appeared at Court today. He is instructed by the solicitor who is the solicitor on the record for the first defendant, and who is also the solicitor for the two directors of the first defendant. He acknowledged frankly that he had not had time to ascertain the extent of the powers of the receiver and manager, and recognised that he might not have valid instructions to appear for the first defendant in the proceedings. Under those circumstances, and without opposition from the plaintiff, I granted him, for the purpose of today’s hearing only, leave to appear as amicus curiae, and to place before the Court such matters as the first defendant might have wished to place, had it been here.

7 The order which the plaintiff now seeks is an order which is referred to as a “four-day order”, which gives a further time to the first defendant in which to complete the contract. The basis for seeking that order is contained in English practice, stated by Jones and Goodhart in Specific Performance, (2nd ed. 1996) page 256-7 as follows:

“If the defendant fails to comply with the order for completion, the plaintiff cannot immediately proceed to execution (see Palmer v Lark [1945] Ch 182 at 184) but must first apply for a further order directing the defendant to complete (See Morgan v Brisco (1886) 32 ChD 192. The application may be made by summons or motion; for precedents see 37 Court Forms (2nd edn) (1995) issue pp 123-24, Forms 92,93.) In a purchaser’s action, the order will normally direct the vendor to execute and deliver to the plaintiff the conveyance or other instrument and to deliver all documents of title to which the plaintiff is entitled as purchaser upon lodgement in court by the plaintiff or the balance of the purchase price (For procedure on lodgement of funds in court, see the Court Funds Rules 1987, SI 1987/82.) In a vendor’s action, the order will normally direct the purchaser to pay to the plaintiff the certified balance of the purchase price, together with any further interest accruing, on deposit by the plaintiff in court of the executed conveyance or other instrument and all documents of title to which the purchaser is entitled.
The order should specify the time within which the defendant must comply; the time is commonly four days from the date of service of the order (RSC Ord 42, r 2), so that this order is one of a class known as ‘four day orders’, but other periods of time may be specified. The court will not make the four-day order where on the totality of the material before the court it seems unjust, unreasonable or impracticable to direct compliance with the specific performance order, but it is for the defendant to show that this is the case. Thus it is not necessary for the plaintiff, in a vendor’s action to show that the defendant has the means to pay the purchase money ( Liemann v Rightside Properties Ltd (1973) 229 Estates Gazette 1347). In exceptional circumstances, a four-day order may be made even if the defendant is not in default (see Liemann v Rightside Properties Ltd (1973) 229 Estates Gazette 1347, in which the defendant was technically not in default because the plaintiff had failed to prosecute the inquiry as to title directed by the judgment before the date fixed by the judgment for completion, but there was in fact no objection to the title and an order was made directing completion in 30 days). In order to enable execution to be enforced, the order must be served personally on any individual against whom execution is sought and must be endorsed with a penal notice – ie a notice that if the defendant fails to obey the order within the time specified he is liable to process of execution to compel him to obey it (RSC Ord 45, r 7). The court will not, save in exceptional circumstances, extend the time for complying with a four-day order after the time has expired ( Hillel v Christoforides (1991) 63 P & CR 301).
If the defendant fails to comply with the four-day order the plaintiff may enforce the order by seeking a writ of sequestration or committal order against the defendant (or, in the case of a corporate defendant, against any director or other officer) (RSC Ord 45, r 5). This course is relatively unusual. In a vendor’s action, it is more common to enforce the order by one or more of the various forms of execution available for enforcement of a money judgment (RSC Ord 45, r 1; see generally title ‘Execution’ in 17 Halsbury’s Laws (4th edn)).”

8 Halsbury’s Laws of England, 4th ed, Vol 44(1) Para 965 contains statements to similar effect to that quoted from Jones and Goodhart.

9 I must confess that the making of a “four-day order” as a prerequisite to enforcing an order for specific performance is a procedural novelty to me. So far as I can see it is not referred to in Nevill & Ashe Equity Proceedings with Precedents (New South Wales) (Butterworths, 1981), nor in Meagher, Gummow & Lehane’s Equity Doctrines & Remedies (4th ed) Ch 20, nor in Spry Equitable Remedies (6th ed 2001). Parker’s Practice in Equity (NSW) (2nd ed 1949) p. 261, McMahon v Cooper (1903) 20 WN (NSW) 220 and the practice direction of Harvey CJ in Eq at (1929) 46 WN (NSW) 187 all suggest that a “four day order”, in the procedures in place in New South Wales before the introduction of the Supreme Court Act 1970, was an order which was made by a judge when enforcement was to be sought of an order which had been made by a Master. One case relied on by Jones and Goodhart, Palmer v Lark [1945] 1 Ch 182, seems to have as its principal concern whether the handing over of the title documents ought be simultaneous with the payment of the purchase price. The other case relied on by Jones and Goodhart, Morgan v Brisco (1886) 32 Ch D 192 was one involving a vendor’s action for specific performance, where the amount due on settlement had been certified by the Chief Clerk, a form of conveyance had been approved by the judge, and a time and place for settlement of the transaction had been fixed, but the settlement had not occurred. The conveyance (executed by the vendor in escrow) and title deeds were then deposited in court. It was in that context that Bacon VC made an order that, within a further four days the amount found due, together with interest at a stipulated rate, should be paid to the solicitors for the plaintiff. Adopting such a procedure might be understandable as a way of making quite clear to the defendant what he was required to do by the court order, before enforcement proceedings were taken against him.

10 There has been insufficient time to fully research the history, and decide the present status in New South Wales of “four day orders” in enforcement of orders for specific performance. Hence I will deal with the plaintiff’s present application at a more general level of principle.

11 I recognise that proceedings for contempt of Court are ones which are usually a last resort, as Holland J also recognised, concerning specific performance in Pasedina (Holdings) Pty Ltd v Khouri (1977) 1 BPR 97046 at 9460-1. However, I do not think that there is any necessary requirement for a Court which has made an order for specific performance to always give a defendant a second chance before proceedings to enforce that order are taken. Whether it is appropriate to give a defendant a second chance will depend on the particular circumstances of the case. Relevant circumstances would include the type of land title involved, and the state that the conveyancing transaction had reached at the time that the order for specific performance was made. In the present case, the land was Real Property Act land of which the vendor was the registered proprietor, and all of the usual steps which conveyancing solicitors involve themselves in, in a conveyancing transaction had been carried out at the time that the order for specific performance was made, save only for the handing over of the relevant documents upon transfer by the vendor, and the payment of the money by the purchaser.

12 It is a general principle concerning orders for specific performance that once an order for specific performance has been made the contractual rights of the parties are not superseded but the future exercise of rights and performance of obligations under the contract is under the control of the Court - or, looking at it from the other side of the coin, the working out of the order for specific performance is under the control of the Court: Singh v Nazeer [1979] Ch 474 at 481-2; Buckman v Rose (1980) 1 BPR 97059, Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245 at 259-260.

13 Even though there is no mandatory requirement for the Court to give a person who has been ordered to perform a contract a second chance, the Court, both pursuant to its power to control the working out of the order for specific performance, and pursuant to its power under Part 2 rule 3 of the Supreme Court Rules 1970, to extend times for compliance with a judgment or order, has the power to fix a new time for compliance, if one has already been fixed and not complied with.

14 A factor which is relevant in the present case to whether a further time for compliance ought be fixed is that the plaintiff wishes, if it can, to take proceedings against both the first defendant, and the directors of the first defendant, seeking sequestration of assets, and, possibly, in relation to the directors, committal for contempt.

15 The plaintiff seeks to serve the directors of the first defendant with the order which is made to invoke the powers of the Court under Part 42 rule 6 Supreme Court Rules 1970, which provides, so far as relevant:

“(1) This rule applies -
(a) where -
(i) a judgment requires a person to do an act within a time specified in the judgment, and
(ii) he refuses or neglects to do the act within that time or, if that time has been extended or abridged under Part 2 rule 3, within that time as so extended or abridged, and
(b) where a judgment requires a person to do an act forthwith or forthwith upon a specified event and he refuses or neglects to do the act as the judgment requires, and
(c) where -
(i) a judgment requires a person to abstain from doing an act, and
(ii) he disobeys the judgment .
(2) In a case in which this rule applies, a judgment may, subject to rule 8, be enforced by one or more of the following means -
(a) committal of the person bound,
(b) sequestration of the property of the person bound, and
(c) where the person bound is a corporation -
(i) committal of any officer of the person bound, and
(ii) sequestration of property of any officer of the person bound.”

16 In particular, it is the power of the Court under Part 42 Rule 6(2)(c) which the plaintiff wishes to exercise against the directors. The principles upon which such a power is exercised are those which have been examined by Needham J in ANS Nominees Pty Ltd v Beverly Manufacturing Co Pty Ltd [1979] 2 NSWLR 875, and by Barrett J in Turner v Oates Properties Pty Ltd [2004] NSWSC 732.

17 It is a fundamental principle that before any orders of committal or sequestration are made by a court, as a consequence of breach of a court order, the court order should be one which states with reasonable precision what is required to be done: Kirkpatrick v Kotis [2004] NSWSC 1265 at [46] – [60]. In the case of an order for specific performance of a conveyancing transaction which is sought to be enforced by an order for committal, it is possible that the order may not have sufficient specificity if it does not make clear what sum is to be paid by the purchaser (which can be established only if there is evidence which shows the details of the conveyancing adjustments which need to be made), and at what place and time that money should be paid, and upon receipt of what other documents that money should be paid. In some of the English cases the practice has been for the form of the conveyance which is required to be executed to be settled by the Judge, for example, the order in Morgan v Brisco (1885) 31 Ch D 216. That may not be necessary in the case of conveyancing under the Real Property Act, provided that the order states with reasonable clarity what attributes a transfer which is to be handed over should have. One way of doing that is to exhibit a copy of the transfer to the order itself - a procedure which is open in the present case, because Exhibit DM-O to the affidavit of David Magney sworn 9 December 2004 is a transfer which has already been accepted by the purchaser. The order should also specify what should be done with whatever other documents might be needed to discharge mortgages or charges. In summary, such an order would contain within it at least the sort of detail which any conveyancing solicitor going to attend a settlement would have a note of, relating to who was to give what documents (including bank cheques) to whom.

18 When the order which has been made in the present case is not one which has the necessary specificity, that provides a sufficient reason, in my view, for the making of a more precise order.

19 I should make clear that it is no criticism of counsel for the plaintiff that the order which was originally made was made in the form in which it was. Very often an order in that form is made by the Court, and once the parties have become aware of the Court’s decision about what their respective obligations are, such an order suffices to enable the transaction to be completed.

20 Mr Howen submits that it would not be appropriate to make any further order for performance of the contract. He points out that such an order is a discretionary one, and that the Court should take into account the utility of making orders. Both of those propositions are incontrovertible.

21 He points to the fact that a receiver/manager has been appointed. He says that if the receiver has all the powers which are usual under a fixed and floating charge, the directors will not be able to do anything concerning the company. Thus, it would be pointless to endeavour to serve them with a copy of the order.

22 I do not accept that proposition. First, there is no evidence before me concerning the quantum of the debt which is owed to the creditor who appointed the receiver and manager, nor of the assets of the company. There is no evidence before me to establish that the receiver/manager is likely to continue in office for any appreciable period of time, or that his powers are such that the directors would be deprived of all power in relation to the assets of the company. While it depends on the precise terms of the particular charge and instrument of appointment, a receiver/manager appointed under a floating charge to a corporation is, in the ordinary case, able to exercise control over the property of the company, to the extent and for the time that is necessary to enable the secured debt to be paid. The directors are not displaced from office.

23 Mr Howen submitted that the plaintiff should have obtained evidence to show that the company had assets available. I do not accept that. Mr McInerney, counsel for the plaintiff, has referred me to a reference in Jones and Goodhart at page 257, that, “… it is not necessary for the plaintiff, in a vendor’s action, to show that the defendant has the means to pay the purchase money.” The authority cited for that proposition, Liemann v Rightside Properties Ltd (1973) 229 Estates Gazette 1347 is not one which has been available in Court today. I therefore prefer to deal with the matter also at a more general level of principle.

24 A submission that the making of an order is futile is one which must have an evidentiary base if it is to succeed. The usual principle, in relation to any litigation, is that the party who wishes to assert a fact to make good his case must prove that fact. For that reason, in my view, a party who seeks to oppose the making of an equitable order on the ground of its lack of utility bears the onus of proving that the facts are such that there is a lack of utility. Applied to the present case, if the first defendant wants to show that making an order is futile because it has no assets which would enable it to perform the order, it bears the onus of proving that lack of assets.

25 I also take into account that evidentiary questions are decided bearing in mind the capacity which the respective parties have in litigation, to bring evidence which bears upon a particular topic. In the present case it is the first defendant that has the more ready capacity to put before the Court evidence of its financial situation.

26 I have allowed into evidence, for the purpose of today’s hearing only, and on the basis that it puts forward a contention which one of the directors, Mr Yazbek wishes to make, an affidavit in which, in broad terms, he says that the first defendant does not have any money. I have expressly reserved any question of whether that affidavit will be admissible on any occasion other than today.

27 Though Mr Howen submitted that “the evidence is that there is no money”, the form of that evidence is not such that I would use it as a basis for summarily denying the plaintiff the opportunity of seeking to enforce the specific performance order which it has obtained. When and if the plaintiff brings further proceedings, it will then be open to the first defendant, and its directors if they are also involved in those proceedings, to put on evidence in proper form to found any submission which they might wish to make if there is some discretionary reason why any further orders ought be refused.

28 As well, Mr Howen submits that a penal notice to the directors is one which would make them party to the proceedings, and in practical terms compel them to be represented and incur costs.

29 The question of whether a director ought be subjected to committal or sequestration is a matter which will be decided when, and if, any proceedings seeking such committal or sequestration are taken. Service of an order upon the director of the corporation is merely a preliminary to the taking of any such proceedings. In the case of the directors, as in the case of anyone against whom a court order is sought, if the order is sought unsuccessfully, the Court retains a discretion as to what should happen concerning the costs of the proceedings. It is not appropriate to pre-judge either whether proceedings will be brought against the directors, or whether proceedings ought succeed against the directors, or what costs order might be made in any such proceedings.

30 It is a matter for a party who obtains an order for specific performance against a corporation as to whether it serves the directors with notice of that order, and also whether it initiates proceedings for committal or sequestration. It would not be appropriate for the Court to actually order that either of such steps be taken, even though the plaintiff is free to take them if he wishes, when an order is made. While there is a requirement under Part 44 rule 3 for a writ of sequestration not to be issued without the leave of the Court, the question of whether such a writ would issue is not one which is to be decided today.

31 For these reasons, I would be willing in principle to make a further order which gives the first defendant further time in which to settle the transaction, and which states with specificity what is to be done at such settlement.

32 A final topic which was debated is whether four days is an appropriate period. The period of four days is one which arises as a matter of practice of the English Courts, without any particular statutory basis. The circumstances in which the present application comes to be brought is that the settlement of the conveyance has been long delayed, and the first defendant has had numerous opportunities to complete it but has failed to do so. In those circumstances, it seems to me that a period of four days is an appropriate period. However, that period of four days should run from the time that an order in proper form is made. There will inevitably be a little delay in the plaintiff bringing in such an order. The practical reality is that the first defendant, and its receiver and manager, and its directors, will know very promptly of these reasons for judgment, and the substance of the decision which has been made. I take that into account in concluding that the period of 4 days from the date of making the order is an appropriate one, even in circumstances where the receiver and manager is comparatively new on the scene.

33 I stand the proceedings over to 4.15pm on Tuesday 10 May.

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11 MAY 2005

I make orders as follows:

THE COURT NOTES that:

On 14 March 2005, the Court:

(a) declared that the contract for sale made between the plaintiff as vendor and the first defendant as purchaser on 28 April 2004 (“the Contract for Sale”) in respect of property of the plaintiff situated at 38 and 40 Edgbaston Road, Beverley Hills, NSW being Folio Identifier Nos. 1/872208 and 2/872208 (“the Property”) is valid and enforceable.

(b) ordered, in effect, that:

(i) The Contract for Sale be specifically performed and carried into execution.
(ii) On 4 April 2005 at 3 pm the first defendant do attend at Gadens Lawyers, Skygardens Building, 77 Castlereagh Street, Sydney, NSW, 2000 to do all things necessary to complete the Contract for Sale and to pay the plaintiff the sum of $1,050,000.00 (plus interest to that date in accordance with Special Condition 32) upon settlement.


(iii) the plaintiff be at liberty to apply.

(c) On 4 April 2005, the first defendant failed to:

(i) attend at Gadens Lawyers, Skygardens Building, 77 Castlereagh Street, Sydney, NSW, 2000.
(ii) do all things necessary to complete the Contract for Sale and to pay the plaintiff the sum of $1,050,000.00 (plus interest to that date in accordance with Special Condition 32) upon settlement.


(d) Each of Mr Fadi Nasr and Mr Daiak Yazbeck are directors of the first defendant.

(e) In the event that the first defendant fails to comply with orders 1 and 3 described below in these Short Minutes of Order (“the further orders”), it is the plaintiff’s intention thereafter to make an application by notice of motion for orders to the effect that:

(i) the first defendant be found guilty of contempt of court in failing to comply with the order for specific performance.
(ii) as to Mr Fadi Nasr and Mr Daiak Yazbek:

· each be joined as a defendant to the proceedings.

· each be held guilty of contempt for the failure of the first defendant to comply with the further orders, pursuant to Pt 42 r 6(2)(c)(i) of the Supreme Court Rules.

· leave be granted to issue a writ of sequestration against the property of each of Mr Fadi Nasr and Mr Daiak Yazbek for the first defendant’s failure to comply with the further orders, pursuant to Pt 42 r 6(2)(c)(ii) of the Supreme Court Rules.

(f) A Receiver and Manager has been appointed on 1 April 2005, to certain property of the first defendant.

THE COURT ORDERS that –

1. On 19 May 2005 at 3 pm the first defendant do attend at the offices of Magney & Magney, Solicitors, Suite 18, Level 4, 3 Spring Street, Sydney, NSW, 2000 to complete the Contract for Sale of the Property (“the Settlement”) in accordance with Settlement Adjustment Sheet, a copy of which is annexed to these Short Minutes of Order and marked with the letter “A” for identification.

2. The plaintiff to hand over to the first defendant, or its representative, at the Settlement the following documents (“the Settlement Documents”) referred to in the Settlement Adjustment Sheet:

(a) Certificate of Title Folio Identifier 1/872208, a copy of which is annexed and marked with the letter “B” to these Short Minutes of Order.
(b) Certificate of Title Folio Identifier 2/872208, a copy of which is annexed and marked with the letter “C” to these Short Minutes of Order.
(c) Discharge of Mortgage over Folio Identifier 1/872208, a copy of which is annexed and marked with the letter “D” to these Short Minutes of Order.
(d) Discharge of Mortgage over Folio Identifier 2/872208, a copy of which is annexed and marked with the letter “E” to these Short Minutes of Order.
(e) Executed Transfer, a copy of which is annexed and marked with the letter “F” to these Short Minutes of Order.
(f) Direction to pay, a copy of which is annexed and marked with the letter “G” to these Short Minutes of Order.


3. Upon receipt of the Settlement Documents referred to in order 2. above, the first defendant to hand over to the plaintiff, or his representative, a bank cheque in the sum of $1,121,464.89 payable to the plaintiff, Mr Peter Zorbas.

4. Grant leave to the plaintiff, if it is so advised, to cause the Order entered and taken out with the Court, to give effect to orders pronounced by the Court in accordance with these Short Minutes of Order, to be indorsed with a penal notice to the effect required by Pt 42 r8(3) of the Supreme CourtRules , to the notice of each of (a) the first defendant, (b) Mr Fadi Nasr and (c) Mr Daiak Yazbek, in the following terms:

“NOTICE TO EACH OF:

- Titan Properties (Aust) Pty Ltd
- Mr Fadi Nasr
- Mr Daiak Yazbek

Upon service of this Order, You are liable to imprisonment or sequestration of property if the First Defendant, by its representative, fails to attend at the offices of Magney & Magney, Solicitors, Suite 18, Level 4, 3 Spring Street, Sydney, NSW, 2000 on 19 May 2005 at 3pm to complete the Contract for Sale of the Property, and to hand over to the plaintiff, or his personal representative, a bank cheque payable to the plaintiff, Mr Peter Zorbas, in the sum of $1,121,464.89, upon receipt of the Settlement Documents referred to in order 2. above.”


5. The first defendant pay the plaintiff’s costs of the application.

6. The plaintiff be at liberty to apply.

7. The Order entered and taken out with the Court, to give effect to orders pronounced by the Court in accordance with these Short Minutes of Order, be served on the first defendant (a) in the first instance by facsimile to the first defendant’s solicitors Sage Solicitor, 5-7 Parramatta Road, Fivedock (9716-5544) by 5 pm on Thursday 12 May 2005, and (b) personally at the registered office of the first defendant as soon as possible and in any event by no later than 4pm on Thursday, 12 May 2005.

8. The Order entered and taken out with the Court, to give effect to orders pronounced by the Court in accordance with these Short Minutes of Order, be served on Mr Fadi Nasr, director of the first defendant, (a) in the first instance by facsimile to Sage Solicitors, 5-7 Parramatta Road, Fivedock (9716-5544) by 4pm on Thursday, 12 May 2005, (b) at the registered office of the first defendant as soon as possible and in any event by no later than 4pm on Thursday, 12 May 2005, and (c) personally by no later than 4pm Tuesday, 17 May 2005.

9. The Order entered and taken out with the Court, to give effect to orders pronounced by the Court in accordance with these Short Minutes of Order, be served on Mr Daiak Yazbek, director of the first defendant, (a) in the first instance by facsimile to Sage Solicitors, 5-7 Parramatta Road, Fivedock (9716-5544) by 4pm on Thursday, 12 May 2005, (b) at the registered office of the first defendant as soon as possible and in any event by no later than 4pm on Thursday, 12 May 2005, and (c) personally by no later than 4pm on Tuesday, 17 May 2005.

10. Leave to enter the Order, to give effect to the orders pronounced by the Court in accordance with these Short Minutes of Order, forthwith.

(Annexures omitted from these reasons.)

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