Airlend Capital Partners Pty Ltd ATF The Picton Security Trust v Hillbilly Transport Buy & Sell Pty Ltd

Category: Procedural rulings

Parties: Airlend Capital Partners Pty Ltd ATF The Picton Security Trust (Plaintiff)
Hillbilly Transport Buy & Sell Pty Ltd (First Defendant)
Peter Kalpaxis (Second Defendant)

Representation: Counsel:
N Simpson (Plaintiff)
Solicitors:
Maddocks Lawyers (Plaintiff)
Pope & Spinks Law (Defendants)

File Number(s): 2024/00460982

Publication restriction: Nil

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JUDGMENT – REvised ex tempore

1. This matter was listed before me today for Possession List judicial management having been referred by the Registrar initially to Faulkner J and then to me.

2. The proceedings were commenced by statement of claim on 11 December 2024 and arise out of a loan agreement made by the plaintiff with the first defendant, guaranteed by the second defendant, on 28 March 2023. The statement of claim seeks judgment for the plaintiff against the second defendant in the sum of $7,053,000.00, being the amount owing as at 6 December 2024, plus interest from that date calculated in accordance with the loan agreement or calculated pursuant to ss 100 and 101 of the Civil Procedure Act 2005 (NSW). The statement of claim also sought judgment for possession and leave to issue a writ of possession to enforce the judgment, if necessary.

3. The situation between the parties appears to have been a little complicated by the appointment last year by the plaintiff of agents to sell the property as mortgagee in possession.

4. The matter was case managed by me by allowing time for the parties to negotiate settlement. Initially there were some orders regarding filing and service of cross-claims by the defendant upon the plaintiff, but in October 2025 it was apparent that negotiations were proceeding in the background. Those negotiations appear to have arrived at a deed of settlement executed on 24 October 2025, which had as part of its conditions that consent orders signed by the parties providing for judgment for the plaintiff against the defendants in the sum of $9,497,166, (and various other facilitative orders), be held in escrow pending the satisfaction of certain conditions and payments being made, the first tranche of payment having been due on 5 December 2025. Also in the consent orders was an order that the second defendant, Mr Kalpaxis, deliver to the plaintiff possession of the property by no later than 5:00pm on 8 December 2025, if the payment was not made. There was also an order that the defendants pay the plaintiff's costs of the proceedings.

5. An email was sent to my chambers on Monday 8 December 2025 by the plaintiff’s solicitor requesting that I enter orders in accordance with the consent orders that had been, up to that stage, held in escrow.

6. In response to that email, an email from the solicitor for the defendants was forwarded stating as follows:

“Dear Associate, I have the email from the plaintiff's lawyers. I am instructed that the settlement agreement has been breached by the plaintiff and that the implementation of the settlement may need to be set aside. I acknowledge that it is an obligation of the defendants to bring any motion to obtain any relief from the Court. I ask that the matter stay in the list on 10 December 2025.”

7. In response to that email I instructed my associate to send an email to the parties to regularise the position as follows:

“Given the competing positions in the emails provided today, her Honour has asked me to advise the parties that any application they wish to make regarding the proceedings should be made returnable on Wednesday at 9:30am and will need to be the subject of a notice of motion and supporting affidavit material served on the other party and provided to chambers by email by midday tomorrow.”

8. I note that I took that course because the Supreme Court Practice Note SC CL 6 that applies to Possession List matters states that motions may not be filed without leave, and that leave has to be obtained by oral application at a directions hearing or by email to the associate of the judge case managing the proceedings.

9. The solicitor for the plaintiff filed a notice of motion seeking the Court make the orders in the consent orders signed by the parties on 24 October 2024. I granted leave for that motion and the affidavit of Ms Funston, solicitor, in support to be filed in Court today.

10. Contrary to the email and the requirements of the Possession List Practice Note, the solicitor for the defendants sought to file a notice of motion and affidavit electronically last night. A copy was provided to the solicitor for the plaintiff, but no copy was provided to my chambers.

11. With the co-operation of counsel for the plaintiff, the defendants’ motion and affidavit were permitted to be filed in Court today and I granted leave for the defendants’ notice of motion and the affidavit of Mr Kalpaxis to be filed in Court.

12. The notice of motion filed by the defendants rather ambitiously sought an order that the deed dated 24 October 2025 between the parties be declared void and of no effect, and that the defendants have leave to file and serve any further evidence upon which they rely by 23 December 2025. It also, somewhat ambiguously, sought an order framed in these terms: “Costs”.

13. Counsel for the plaintiff sought and obtained leave to file an affidavit of Mike Turk, a real estate agent, sworn on 10 December 2025, which deals with the matter that seems to be in issue, which is whether there was adequate compliance with the provision of cl 6.2 of the Deed of Settlement between the parties executed on 24 October 2025, which provides as follows:

“Within two business days of the execution date the agents and the lender will endeavour to take all reasonable steps required to remove the security property for sale including instructing Mike T Real Estate to cease all sale advertising with respect to the security property both online and in print form.”

14. The affidavit of Mr Kalpaxis asserts the following:

“Perhaps a week after entering into this agreement referred to in paragraph 2 (that is the agreement of 24 October) I discovered that the subject property was still being offered for sale by the plaintiff. Annexed hereto and marked with the letter 'B' are screen shots from Friday 5 December 2025 from a site www.allhomes.com.au, which assert that Mike T Real Estate as the agents for sale. I did not engage Mike T Real Estate and say that Mike T have been engaged by the plaintiff as their agent.”

15. Mr Kalpaxis goes on to complain that when he has been trying to negotiate sale of the property, he was “confronted with statements that I was not in control of my own property” and “financiers were reluctant to continue negotiations as they had the impression the plaintiff was in possession”.

16. In support of that assertion a letter from a finance broker, Mr Foy, makes some assertions of a vague and general nature about the deed of settlement imposing restrictions that “effectively prevented investors from undertaking standard due diligence processes or obtaining necessary disclosures”. There are other similarly vague general statements. There is no reference to any actual identifiable purchaser or any documentation supporting any of the vague statements made in the letter.

17. The asserted screen shot of 5 December 2025 unfortunately does not reveal on its face anything that evidences that it was in fact a screen shot taken on that date. It shows some pages of what appears to have been a 12 page extract, which includes a photograph of an apparently rural property, and refers to [REDACTED] Remembrance Drive, Picton. It is clearly some kind of agent advertising material, which references the potential to send an enquiry to Mike T “to learn more about this property, request an inspection or take an online tour”, and has what appears to be a red contact button with the words “Contact Agent” in it. However, as I have said, unfortunately nothing on the face of that document indicates that it is in fact a screen shot taken on 4 December 2025.

18. More importantly, what cl 6.2 of the Deed of Settlement requires is that the agents and the lender endeavour to take all reasonable steps required to remove the security property for sale. (Emphasis added).

19. I am satisfied on the material annexed to Ms Funston's affidavit and the affidavit of Mike Turk that all reasonable steps have been taken. In those circumstances I do not see that there has been a breach of the deed of settlement at all.

20. Mr Pope, who appears for the defendants today, raised from the Bar table suggestions that somehow things were said by representatives of the plaintiff to some people about certain things that interfered with the prospect of the defendants being able to sell the property. In the absence of affidavit material providing detail of exactly what is referred to and how, if at all, that could have been considered to be a breach of the deed of settlement, I am unable to act on these vague, unsupported assertions from the Bar table.

21. This agreement signed on 24 October 2025 has precise dates within it as to the time within which certain things have to happen. If the defendants had a genuine position to raise with the Court that comprised a breach of the Deed of Settlement, the time to raise it was when those things happened, not after the effect of the Consent Orders means that this Court can and should automatically formalise those consent orders.

22. Counsel for the plaintiff, Mr Simpson, suggested that this Court does not need to go so far as to consider the requirements of s 73 of the Civil Procedure Act and make orders under that section by way of enforcement of the settlement.

23. I agree with that interpretation of the position.

24. In respect of the orders sought by the defendants, there is nothing in the affidavit evidence that would provide any basis at all for the declaration sought by order 1 in the notice of motion that the deed should be declared void and of no effect.

25. As provided in Angius v Salier [2015] NSWSC 1446 at [56]-[60] and in the authorities referred to in those parts of the judgment of Hallen J, much more is required where application is made for a Court to refuse to enter judgment or refrain from entering orders or to go down the path of seeking to consider whether there is a basis to set aside the agreement entered into by the parties.

26. There seems to me to be no useful purpose served in adjourning today’s notices of motion to engage in that kind of enquiry. It is to my mind appropriate for the Court to simply enter the orders that were signed by the parties on 24 October 2025 given the defendants’ failures to pay the sum due on 5 December 2025, with the adjustment to the time within which the second defendant is to deliver to the plaintiff possession of the property to 5:00pm today.

27. With that adjustment, I made orders in accordance with the short minutes of order signed by the parties on 24 October 2025 with those orders to be entered forthwith, with additional orders dealing with costs and with the defendants’ notice of motion:

28. I grant leave to the plaintiff to file in Court its Notice of Motion dated 9 December 2025, and affidavit of Danielle Fuston dated 9 December 2025 together with Exhibit DF-1.

29. I grant leave to the plaintiff to file in Court the affidavit of Mike Turk sworn or affirmed 10 December 2025.

30. I grant leave to the defendants to file in Court their Notice of Motion dated 9 December 2025 together with an affidavit of Peter Kalpaxis affirmed on 9 December 2025.

31. Judgment for the plaintiff against the first and second defendants in the sum of $9,497,166.00 being the amount owing as at 5 December 2025.

32. An order that the first and second defendants pay to the plaintiff interest on the amount of $9,497,166.00 from 5 December 2025 to the date judgment is entered, calculated pursuant to the Loan Agreement (as defined in paragraph 5 of the Statement of Claim).

33. Alternatively, an order that the first and second defendants pay to the plaintiff interest on the amount of $9,497,166.00 pursuant to s 100 and s 101 of the Civil Procedure Act 2005 (NSW).

34. An order that the mortgage numbered [REDACTED] dated 28 March 2023 from the second defendant to the plaintiff is specifically performed by the second defendant giving to the plaintiff possession of the land comprised in the Certificate of Title Folio Identifier [REDACTED] being the land situated at and known as [REDACTED] Remembrance Driveway, Picton NSW 2571 (“Property”).

35. An order that the second defendant deliver to the plaintiff possession of the Property by no later than 5:00pm AEST on 10 December 2025.

36. By way of enforcement of orders 4 and 5, judgment for the plaintiff against the second defendant for possession of the Property, and leave to issue a Writ for Possession forthwith.

37. The defendants to pay the plaintiff’s costs of the proceedings including the cost of the plaintiff’s notice of motion filed in Court today.

38. The defendants’ notice of motion filed in Court today dated 9 December 2025 is dismissed with the applicant defendants to pay the plaintiff’s costs of that notice of motion including counsel’s fees.

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