Burt v Yiannakis
[2024] NZHC 3987
•20 December 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2013-404-3251
[2024] NZHC 3987
BETWEEN DEANNE MARGARET BURT
Applicant
AND
YIANNOS YIANNAKIS
Respondent
Hearing: 26 October 2023 Appearances:
A J Peat, P K J Roycroft and R J MacDonald for the Applicant Y Yiannakis as self-represented Respondent
Judgment:
20 December 2024
JUDGMENT OF ROBINSON J
This judgment was delivered by me on 20 December 2024 at 2:00 pm pursuant to Rule 11.5 of the High Court Rules
…………………………………………………………………… Registrar/Deputy Registrar
Solicitors/Counsel: MBC Law, Ellerslie A J Peat, Auckland
P K J Roycroft, Auckland
Copy to:
Mr Y Yiannakis (Respondent)
BURT v YIANNAKIS [2024] NZHC 3987 [20 December 2024]
Introduction
[1] Ms Burt and Mr Yiannakis were married. They separated in 2012. Protracted litigation about the division of their relationship property ensued. In a laudable (but evidently unsuccessful) attempt finally to resolve matters, they agreed to orders which Asher J in this Court made by consent on 17 October 2016 (the consent orders). In broad terms, Ms Burt gave up any claim or interest in seven properties in New Zealand and in London. In return, she was to receive $450,000 in two instalments. Mr Yiannakis was also to arrange her release from any liability with respect to any loan in relation to three of those properties. And, to keep Ms Burt indemnified with respect to any outgoings on those properties.
[2] Mr Yiannakis has paid Ms Burt the first instalment of $250,000, and she has transferred her shares in the company that owned the properties. However, Mr Yiannakis has not paid Ms Burt the second instalment of $200,000, which was due on 30 January 2018, 15 weeks after the consent orders.
[3] Mr Yiannakis says he is willing and able to pay Ms Burt the $200,000 when she transfers her interests in two of the London properties to him. Ms Burt says that she will make the transfer, but not until she is released from any liability under the loans secured by mortgages over those properties. Mr Yiannakis says he has done all he can to arrange those releases, but the mortgagee banks will not agree. He has agreed to indemnify Ms Burt with respect to any claim or default arising out of those secured loans.
[4] On 8 February 2018, Ms Burt issued a bankruptcy adjudication proceeding against Mr Yiannakis in relation to the $200,000 he owes her under the consent orders. Mr Yiannakis opposed on the basis that he was willing and able to pay the outstanding debt, but Ms Burt had imposed conditions on her acceptance of the money that were not permissible under the consent orders: in particular, before transferring her interest in the London properties she requires to be released from her mortgage debt, which Mr Yiannakis says the mortgagees will not permit.
[5] Associate Judge Smith dismissed Ms Burt’s application.1 He found that Mr Yiannakis appeared to have misunderstood his obligation to procure Ms Burt’s release from liabilities on the loans from the English banks,2 but that it was:3
…reasonably arguable for him that his obligation [to procure a release for Ms Burt] was not a precondition to Ms Burt’s obligation to transfer her interests in the London properties to him against payment of the $200,000.
[6]I return to Associate Judge Smith’s judgment shortly.
[7] Regrettably, the parties remain unable to bridge what appears to be a relatively narrow gap between them. Ms Burt applies to the Court in the exercise of its inherent jurisdiction to make directions as to the proper interpretation of the consent orders in the slightly unusual circumstances.
Background
The consent orders
[8]The relevant parts of the consent orders are as follows:4
Property Transfers
1. Within 14 days from the date of making these orders Ms Burt will do all acts and things and sign all documents necessary to transfer to Mr Yiannakis her shares with Winchmore Estates Limited (which owns the property situated at 2/27 St Stephens, Parnell, Auckland ("St Stephens property"[)]. This will include the assignment of the current account in Winch more Estates Limited to Mr Yiannakis.
2. Within 15 weeks from the date of making these orders Ms Burt will do all acts and things and sign all documents necessary to transfer to Mr Yiannakis the whole of her right, title and interest in the property situated at 15C Tower Terrace, London N22 6SX ("Tower Terrace property") subject to the existing loan with HSBC Bank. This order is subject to Mr Yiannakis' compliance with order 11 (b) [sic] (payment of
$200,000 to Ms Burt).
3. Within 15 weeks from the date of making these orders Ms Burt will do all acts and things and sign all documents necessary to transfer to
1 Re Burt, ex parte Yiannakis [2018] NZHC 3102.
2 At [58].
3 At [59].
4 I note that there are typographical errors in the orders. Clauses 2 and 3 should refer to cl 10(b), not “order 11(b):”. Further, there is another drafting error in that cl 10 should say “in consideration of paragraphs 1 to 9”.
Mr Yiannakis the whole of her right, title and interest in the property situated at 12B Alexandra Road London N8 0PP ("Alexandra Road Property") subject to the existing loan with Barclays Bank. This order is subject to Mr Yiannakis' compliance with order 11(b) (payment of
$200,000 to Ms Burt).
…
Indemnity
9. Mr Yiannakis shall:
a.Arrange to release Ms Burt from any liability with respect to any loan in relation to the St Stephens property, Tower Terrace property and Alexandra Road property; and
b.Indemnify and keep indemnified Ms Burt with respect to any loss, claim or default arising from any outgoings on the St Stephens property and/or the UK properties but not limited to loan repayments, rates and insurance.
Settlement Amount
10. In consideration of paragraphs 1 to 10 Mr Yiannakis shall pay Ms Burt the total settlement amount of $450,000.00 ("settlement amount") being:
a.$250,000.00 payable within 14 days from the date of these orders subject to Ms Burt immediately consenting to Westpac releasing these funds from the existing line of credit;
b.$200,000.00 being the balance payable within 15 weeks from the date of the orders.
11. In the event that the settlement amount or part thereof is not paid within the time frames under order 11[,] interest will accrue at the rate of 5% per annum from the date of default to the date of payment.
…
14. In the event that Ms Burt has to take enforcement action then Mr Yiannakis will pay costs on an indemnity basis.
The Application
[9]Ms Burt seeks the following orders:
1. The Applicant, Deanne Margaret Burt, will on… at… apply to the Court for orders:
(a)as to the proper interpretation of consent orders made by Asher J in this proceeding on 17 October 2016 (Consent Orders), including that;
(i) in accordance with the Consent Orders, and interdependently with the transfer of title to the following two properties, the Respondent is obliged to:
(1)obtain a release for the Applicant from any liability with respect to any loan in relation to the properties known as the Tower Terrace property and Alexandra Road property (cl 9(a) of the Consent Orders); and
(2)pay the Applicant $200,000 (cl 10(b) of the Consent Orders) together with interest thereon (cl 11 of the Consent Orders),
(ii) settlement in accordance with the above was to occur within 15 weeks from the date of the Consent Orders (30 January 2017);
(b)directing the Respondent to promptly comply with his obligations under the Consent Orders and for the contemplated settlement to occur forthwith;
(c)such other orders as the Court thinks fit;
(d)costs on a solicitor-client basis (cl 14 of the Consent Orders); and
(e)leave be reserved for the parties to return to the Court for such other or consequential directions.
[10] Ms Burt brings the matter before the Court by way of an interlocutory application seeking orders as to the proper interpretation of the consent orders. Ordinarily, the Court will not make orders or grant directions as to the proper interpretation of its own judgments, which are to speak for themselves. However, in the present case the parties negotiated and drafted the consent orders, which are intended to take effect as a settlement of the respective claims under the Property (Relationships) Act 1976 (PRA) as to the status, ownership and division of their relationship property.5 In those circumstances, I am content to treat Ms Burt’s application as an originating application for relief under the Declaratory Judgments Act 1908. Section 3 relevantly provides:
Where any person claims to have acquired any right under any… [agreement made or evidence by writing]… such person may apply to the High Court by originating summons for a declaratory order determining any question as to the construction or validity of such… agreement… or any part thereof.
[11] Mr Peat for Ms Burt explains that she is asking the Court in the exercise of its inherent jurisdiction to resolve a dispute as to the proper interpretation of the consent
5 Property (Relationships) Act 1976, s 21A.
orders, and to make directions that will facilitate their implementation. In particular, Mr Peat says the parties require the Court’s assistance to break their impasse as to whether:
(a)Mr Yiannakis is obliged to arrange for Ms Burt to be released from any liability with respect to any loan relating to the Tower Terrace and Alexandra Road properties; and
(b)if so, whether Mr Yiannakis must have arranged those releases before Ms Burt is obliged to transfer her rights in those properties, subject to Mr Yiannaki’s payment of $200,000.
[12] Ms Burt’s position is that the consent orders require Mr Yiannakis to have arranged a release of any liability she has for the loans for the London properties by the time she transfers her interest in the properties under cl 3, and that all this should have occurred within 15 weeks of the date of the orders (that is, by 30 January 2017). Mr Peat submits that, despite being obliged to effect Ms Burt’s release from the relevant liabilities, he has not done so. However, Ms Burt seeks no remedial relief against Mr Yiannakis, by way of specific performance or otherwise. Instead, she makes an interlocutory application in the proceeding in which the consent orders were made, and seeks orders as to the proper interpretation of those orders.
Mr Yiannakis’ position
[13] Mr Yiannakis did not file a notice of opposition but did file an “affidavit in defence”, and one in reply to Ms Burt’s reply. He also made oral submissions at the hearing. Essentially, Mr Yiannakis says that he has gone to significant efforts to settle the case, but that despite his request the mortgagees of the two London properties, HSBC and Barclays Bank, refuse to release Ms Burt from her financial obligations. He says that he has complied with the consent orders “to the letter of the law” and that it is Ms Burt who has failed to fulfil her obligations by not transferring to him her interests in the two London properties. In oral submissions, he emphasised that he wants Ms Burt to be released from the mortgages, but cannot force the mortgagees to release Ms Burt and cannot be obliged to do something that is beyond his control.
[14] In response to Ms Burt’s suggestion that Mr Yiannakis has sufficient equity in the properties (and others) to refinance the mortgage debt without her, Mr Yiannakis says that the Mortgage Market Review of 2014 has made it significantly more difficult to raise finance following the Global Financial Crisis. He also explains that he has started a new life in Thailand which does not have the same anti-money laundering regulatory frameworks to which most Western banks adhere. He says this has added another level of complexity to an already difficult situation. In the meantime, he explains that the loan-to-value ratio of the two London properties is 20 per cent and 35 per cent respectively. The loans are not in default. Mr Yiannakis has also provided Ms Burt with an indemnity. For these reasons, he says there is almost no financial risk to Ms Burt to stay on the mortgages until they are paid off.
Legal principles
[15] Ms Burt invokes the Court’s inherent jurisdiction and seeks orders as to the proper interpretation of consent orders. Although Ms Burt has not invoked the Declaratory Judgments Act 1908, I consider that the well-established principles as to whether it is appropriate to provide declaratory relief are relevant.
[16] An application for a declaratory order is inappropriate when there are questions of fact to be determined.6 Similarly, declaratory relief which has no utility will not be granted.7 There can be exceptions to this general rule. As the Court of Appeal has observed, “there can be more utility to a Court proceeding than just the obtaining of a directive order that changes the practical status quo”.8 For instance, a declaration might be made to repair unfair damages to a plaintiff’s reputation, despite the lack of any material effect.9 Declaratory relief may also granted if the case is of significant public importance, as it was in R v Gordon-Smith.10 The Court should not attempt to exercise the declaratory judgment jurisdiction if the matter in dispute can be conveniently brought before the Court in its ordinary jurisdiction.
6 Mandic v The Cornwall Park Trust Board (Inc) [2011] NZSC 135, [2012] 2 NZLR 194 at [5].
7 Te Whakakitenga O Waikato Inc v Martin [2016] NZCA 548, [2017] NZAR 173 at [39]; Motor Vehicle Dealers Institute Inc v Auckland Motor Vehicle Disputes Tribunal (2000) 6 NZBLC 103,159 (CA) at [24]; and Just One Life Ltd v Queenstown Lakes District Council [2004] 3 NZLR 226 (CA) at [4].
8 Te Whakakitenga O Waikato Inc v Martin, above n 7, at [41].
9 At [41].
10 R v Gordon-Smith [2008] NZSC 56, [2009] 1 NZLR 721 at [14].
Contract interpretation
[17] The general law of contractual interpretation applies to the construction of relationship property agreements made pursuant to s 21A of the PRA,11 subject to additional principles. Contractual interpretation is an objective exercise, the aim of which is to ascertain the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties at the time of the contract. The text is important, but so is context.12
[18] Extrinsic evidence of prior negotiations is admissible if it shows what a party intended words to mean and that this was communicated, as this may show a common mutual understanding as to the meaning of the contract. It is fair to admit evidence tending to objectively prove what parties intended the words to mean to assist with the interpretation of the text of the contract because this is the most consistent severe approach most consistent with holding the parties to their true bargain.13
[19] I accept Mr Peat’s submission that additional principles of interpretation apply in the case of agreements made in respect of relationship property:
(a)A PRA agreement is normally intended to resolve permanently all relationship property questions between the parties. This is the “clean break” principle.14 Division of relationship property should be done in a way which is “immediate, complete and final”.15 An interpretation that achieves this principle is desirable. The “severance of proprietary and financial relationships” is “an objective to be pursued as far and as soon as possible” where an immediate clean break is not possible.16
11 M v H [2018] NZCA 525, [2018] NZFLR 918 at [25].
12 Firm PI 1 Ltd v Zurich Australian Insurance Ltd [2014] NZSC 147, [2015] 1 NZLR 432 at [60]–[63].
13 Bathurst Resources Ltd v L & M Coal Holdings Ltd [2021] NZSC 85, [2021] 1 NZLR 696 at [75]–[76].
14 In other words, the PRA is premised on the division of relationship property and the parties should be free to go their separate ways without any competing continuing demands on the property of each other. See Scott v Williams [2017] NZSC 185, [2018] 1 NZLR 507 at [286].
15 RL Fisher Fisher on Matrimonial and Relationship Property (online ed, LexisNexis) at [18.47].
16 At [18.51].
(b)The PRA regime is one of social policy,17 so the interpretation of PRA agreements should not be approached in a strict commercial way.
(c)The true interpretation of the agreement should be consistent with the PRA’s purposes and principles, including a “just division” of relationship property, and that issues should be resolved “inexpensively, simply, and speedily as is consistent with justice”.18 A PRA compromise “is normally intended to embrace all the parties’ assets and liabilities”.19
Bankruptcy judgment
[20] As noted, Associate Judge Smith dismissed Ms Burt’s application in 2018 for an order adjudicating Mr Yiannakis bankrupt in relation to his non-payment of the
$200,000 payable by him under cl 2 of the consent orders. Ultimately, the Judge was satisfied that Mr Yiannakis had the money to pay Ms Burt $200,000 plus interest, and was unwilling rather than unable to pay her.20
[21] The Judge also considered that both parties may have misconstrued their rights and obligations under the consent orders.
[22] The Judge noted that the first substantial issue between the parties was whether Ms Burt was entitled to insist on Mr Yiannakis discharging his obligation under cl 9(a) of the consent orders (arranging the release of Ms Burt from any liability with respect to the Tower Terrace and Alexandra Road properties) before the transfer of her interest in those properties was completed in accordance with cls 2 and 3.21 That substantial issue remains. The Judge observed that the sticking point has been that Mr Yiannakis has not been able to procure a release for Ms Burt from her personal covenants under the two mortgages registered on the London properties, and has not been willing to sell either or both of those properties to achieve the release. That sticking point also
17 At [18.47].
18 Property (Relationships) Act, ss 1M(c) and 1N(d).
19 Fisher Fisher on Matrimonial Property, above n 15, at [5.9].
20 Burt v Yiannakis, above n 1 at [62].
21 At [55].
remains, although Ms Burt does not accept that Mr Yiannakis has been unable (rather than unwilling) to procure a release of her personal liability to the English banks.
[23] Judge Smith considered it to be “reasonably arguable” for Mr Yiannakis that he could procure the release for Ms Burt under cl 9(a) after her transfer of her interest in the London properties. He had paid her $200,000 and she had transferred her interest in the two London properties to him.22 This because cls 2 and 3 of the orders require Ms Burt to transfer her interest in the London properties “subject to the existing loans”. Also, Ms Burt’s obligations under cls 2 and 3 to transfer her interest in the properties to Mr Yiannakis was expressly subject to his obligation under cl 10(b) to pay her $200,000, but there is no equivalent qualification requiring him to meet his obligations under cl 9(a) before Ms Burt was required to transfer her interest to him.
[24] On the other hand, the Judge recorded that Mr Yiannakis appeared to believe that he could meet his obligations under cl 9 by simply providing Ms Burt with an indemnity in respect of her liabilities on her personal covenants to the English banks. On the face of it, the Judge thought that Mr Yiannakis’ interpretation was inconsistent with cl 9 which calls not only for the indemnity (cl 9(b)) but also for Mr Yiannakis to actually procure for Ms Burt releases from liability. “On the face of it, she appears to be entitled to have Mr Yiannakis procure releases from the English banks, and that has not occurred”.23
[25] Ms Burt does not agree with Associate Judge Smith’s observation in obiter that Mr Yiannakis could comply with his obligation to arrange a release of her liability to the English banks after she had transferred her interest in the London properties to Mr Yiannakis and received $200,000 from him. As noted previously, she maintains that Mr Yiannakis is obliged to obtain the release of her liability and to pay her
$200,000 “interdependently with the transfer of title” to the properties.
Evidence and submissions
[26]Ms Burt relies on the parties’ pre-contractual negotiations.
22 At [56].
23 At [58].
[27] On 7 October 2016, Mr Yiannakis’ solicitor emailed draft consent orders to Ms Burt’s solicitor. These provided that Ms Burt would transfer her interests in the two London properties within 90 days of the dates of the orders, and that Mr Burt would pay the second tranche of $250,000 within eight to 12 weeks from the date of the order. This draft contained the same cl 9 requiring Mr Yiannakis to arrange to release Ms Burt from the liability to the English lenders, and to indemnify her with respect to the London properties, without expressly stating any time by which he was to do so.
[28] Following an exchange over the rate of penalty interest to be agreed, Mr Yiannakis’ solicitor emailed Ms Burt’s solicitor explaining that the “issue” was:
… just how long things take in the UK. My client believes it will be 12 weeks. This is based on his experience. He has done refinancing before. He is not trying to be difficult. He will be in to see a bank tomorrow morning. If the parties can’t compromise on this we have no deal and this runs. To get this finished he will do 5%.
[29] Shortly afterwards, Mr Yiannakis’ solicitor emailed an amended consent order. The amendments expressly made Ms Burt’s obligation to transfer her interest in the properties subject to Mr Yiannakis’ compliance with his obligation to pay her
$250,000. All of this was to occur within 12 weeks.
[30] On 10 October 2016, there was further email correspondence. Mr Yiannakis’ solicitor sent Ms Burt’s solicitor an email stating that:
I have spoken to [Mr Yiannakis] this morning.
In short he needs a bit more time – few days I suspect. He has to:
1. Check with Barclays and HSBC that he can release [Ms Burt];
2. Check with Westpac that he can release [Ms Burt]…
…
In short I do not want a problem with compliance – and ensuring your client is released from her obligations to the Banks is in both parties interests.
[31] Later that morning Mr Yiannakis’ solicitor sent a joint memorandum to the Court asking that a teleconference scheduled for later that day be vacated. The joint memorandum recorded:
…
2. In short Mr Yiannakis requires a few more days to ensure that he can obtain the necessary releases of Ms Burt from her loan obligations to the UK and NZ Banks.
3. Mr Yiannakis is taking urgent steps to address this.
…
5. Counsel can indicate that both parties consider they have a settlement. It is only some of the details that need attention.
[32] On 11 October 2016, Mr Yiannakis’ solicitor emailed Ms Burt’s solicitor a copy of a letter from his mortgage broker in England advising that it would take between 12–15 weeks to raise the necessary finance. If Ms Burt would agree to the extra time, Mr Yiannakis would pay $250,000 in the first tranche and $200,000 in the second tranche, rather than the other way around. Ms Burt agreed.
[33] Ms Burt says in evidence this demonstrates the parties’ intention that she would not transfer her interest in the properties until she had been released from the lending in relation to them and Mr Yiannakis had made payment. She says these are the usual requirements of a normal property settlement.
[34] Ms Burt also refers to Mr Yiannakis’ subsequent conduct. The first part of the agreement was implemented without incident. In accordance with cl 2 of the consent orders, Ms Burt transferred to Mr Yiannakis her shares in the company that owned the property at St Stephens Road. In accordance with cl 10(a), he paid the first tranche of
$250,000. Further, in accordance with cl 9, she was released from the mortgage to Westpac.
[35] However, Mr Yiannakis has not arranged for her to be released from the lending on the London properties. He says that is despite his best efforts and for reasons beyond his control. Ms Burt does not accept that. On her behalf Mr Peat
submits that although Mr Yiannakis initially accepted he had an obligation to procure Ms Burt’s release from the lending, he chose not to.
[36] The second instalment was due on 30 January 2017. Between 31 January 2017 and 16 February 2017 Ms Burt’s solicitor made various enquiries of Mr Yiannakis. On 17 February 2017 Mr Yiannakis’ English solicitor advised that:
The lenders of the [two London properties] have consented to the transfer of [Ms Burt’s interest to Mr Yiannakis], however they have stated that [Ms Burt] must still remain on the mortgage.
[37] Ms Burt’s solicitor responded that it would be unreasonable for Ms Burt to transfer an ownership interest in the properties but remain liable on the mortgage. Mr Yiannakis responded in turn that the mortgage market in the UK had changed significantly in the last two years and that the mortgagees, HSBC and Barclays, both insisted “that we cannot change any of the existing lending criteria on [the two London properties]”.
[38] Ms Burt and her solicitors asked Mr Yiannakis to provide a copy of the banks’ requirements. Mr Peat submits that the documents they received suggest that, contrary to his obligation to arrange releases of Ms Burt by the banks, he informed them she would remain a mortgagor. He refers to Mr Yiannakis’ solicitor’s letter to HSBC dated 3 April 2017 recording:
We are instructed that [Mr Yiannakis] has contacted you directly in relation to the proposed transfer of the above property into his sole name. Our client instructs us that [Ms Burt’s] name would still be on the mortgage.
[39] On 11 April 2017, HSBC responded. It confirmed that (subject to managerial approval) there was no objection to the transfer of ownership of the London property over which it had a mortgage. However, “if there is a change to the named borrowers or borrowing a new mortgage application upload is required”.
[40] Similarly, on 6 April 2017 Barclays Bank wrote to Mr Yiannakis’ solicitors as follows:
We can confirm that we agree to the proposed transfer of the above property into the name(s) of [Mr Yiannakis], subject to our existing mortgage.
We note that [Ms Burt] is not being released from her mortgage covenants at this time; therefore, both borrowers will remain jointly and severally responsible for the mortgage commitment.
[41] In any event, Mr Peat submits that it is Mr Yiannakis’ obligation to arrange for a release of Ms Burt from the lending obligation, and that she should not be required to transfer her titles to the London properties while still liable to be called upon to satisfy the mortgages. He says there is no evidence to suggest that the release of Ms Burt could not be achieved by other means, for example by Mr Yiannakis selling one or more of his other properties. He submits that it is insufficient for Ms Burt to be left to rely on the indemnity Mr Yiannakis has provided under cl 9(b). Ms Burt would only need to rely on the indemnity in circumstances where Mr Yiannakis had allowed the lending on the London properties to default.
Discussion
[42] The evidence shows that during the course of negotiating their agreement the parties intended to ensure that Mr Yiannakis had sufficient time to arrange the release of Ms Burt’s obligations to the English banks. He appears to have intended to arrange these releases by refinancing. However, I am not satisfied, on a proper interpretation of the agreement recorded in the consent orders, Mr Yiannakis’ obligation to arrange a release of Ms Burt was to be performed interdependently with his obligation to pay her $200,000. I say that for the following reasons:
(a)As Associate Judge Smith noted, cls 2 and 3 of the Consent Orders require Ms Burt to transfer her interest in the London properties “subject to the existing loan[s]” with each of HSBC and Barclays Bank.
(b)Ms Burt’s obligation to transfer title is expressly subject to Mr Yiannakis’ obligation to pay. An express amendment to that effect was made during the course of negotiations. However, Ms Burt’s obligation to transfer is not expressly made subject to Mr Yiannakis’ obligation to arrange the release.
(c)Mr Peat submits that the interdependence of the various obligations is clear from cl 10, which provides that Mr Yiannakis’ payment obligation is “in consideration of paragraphs 1 to [9]…”. However, the obligation to pay Ms Burt under cl 10 and the obligation to arrange for her to be released from any liability under cl 9 are both the obligations of Mr Yiannakis. His obligations cannot be in consideration of each other.
[43] Ms Burt also seeks an order directing Mr Yiannakis to promptly comply with his obligations under the Consent Orders. I am not prepared to make that direction. It adds nothing to the terms of the Consent Orders already in place.
[44] As Associate Judge Smith observed, Mr Yiannakis’ obligation is to arrange Ms Burt’s release from the relevant loans. He has not done that. He suggests the releases have not been forthcoming for reasons beyond his control. Obviously, it is ultimately for the lender mortgagees to grant the releases; Mr Yiannakis’ obligation is to arrange them. I observe that, on the evidence before me, I would not be satisfied that he has done everything he reasonably can to arrange those releases.
Result
[45] The application is dismissed. Mr Yiannakis was self-represented and is not entitled to costs. In the unusual circumstances of this case, I would not have awarded them in any event.
Robinson J
0
8
1