ANZ Banking Group Limited v Pearce [2003] VSC 49

The application is supported by a number of affidavits, including an affidavit sworn 20 November 2002 by Glynn Robert Sadler, an officer of the Bank, in which he deposes to events of default under the deed; the amount of the debt which is due; and the demand which has been made, and to which are exhibited conclusive evidence certificates pursuant to terms of the deed which provide for the proof of default and the amount of debt which is owing in that fashion.

Supreme Court of Victoria|2003-02-19|Before: NETTLE J

Application for possession of land: Pursuant to default under Deed of Settlement: Monies owing: Numerous undertakings to pay.

I have before me an application for judgement for debt and possession of land sought pursuant to a deed of settlement made between the plaintiff and the defendants on 2 August 2002.

The application is supported by a number of affidavits, including an affidavit sworn 20 November 2002 by Glynn Robert Sadler, an officer of the Bank, in which he deposes to events of default under the deed; the amount of the debt which is due; and the demand which has been made, and to which are exhibited conclusive evidence certificates pursuant to terms of the deed which provide for the proof of default and the amount of debt which is owing in that fashion.

Having had my attention directed by Ms Knight on behalf of the plaintiff to the relevant provisions of the deed, and to the sections of the affidavits and exhibits upon which reliance is placed, I am satisfied that bank has demonstrated that it is entitled to judgement as against the first and second named defendants in the sum of $850,916.79 together with interest at the rate of $227.27 per day, as against the third defendant in the sum of $817,025.25 together with interest at the rate of $219.54 per day, and as against the fourth defendant in the sum of $33,891.54 together with interest at the rate of $7.73 per day. I consider that the bank is entitled to an order for possession as against the first and second named defendants in respect of the land described in certificate of title volume 6292 folio 269, being a land situate and known as 273 Pascoe Vale Road, Essendon.

The first named defendant Graeme Maxwell Pearce, has appeared before me this morning and sought to make submissions on his own behalf and also on behalf of the second defendant, his wife, and the third and fourth defendant companies, with which both he and his wife are associated. His application to speak on behalf of the other defendants is opposed on grounds which appear to me as well based and therefore I have not heard Mr Pearce on behalf of the other defendants. I have, however, heard him speak on his own behalf, and I take into account what he has said concerning the affairs of his wife and other corporate defendants, insofar as it bears on his own position.

Mr Pearce has produced an affidavit of the second defendant Anita Marie Pearce in which she deposes to her willingness to have the mortgaged property sold by auction, in order to repay the debt which is due to the bank, and that she has executed two exclusive auction authorities authorising Brad Teal of Brad Teal Real Estate to auction the property on 22 March this year. She also deposes that she has received advice from Mr Teal that it would be preferable if the auction were delayed until 29 March this year.

The history of this matter is littered with occasions on which the defendants have promised the bank that they would pay by a certain date and that if they do not that they would give up possession of their property, and of the defendants failing to comply with those promises. It has, however, been submitted to me this morning by Mr Pearce the defendants failure to comply with their promises has not been wilful, but rather the result of unavoidable misfortune, including in particular the outcome of litigation in which they were and are still engaged and upon which they were reliant for a large part of the money required to discharge their debt. Mr Pearce has submitted to me that given that the defendants are plainly now embarked upon the course of having the property sold in order to realise the moneys necessary to repay the bank, and that their efforts in conjunction with the estate agent whom they have appointed for the purposes of the auction are likely as a matter of experience to realise a better price than would be realised by a mortgagee in possession, judgment ought be stayed for a period of time in order to allow the agent to complete the auction and realise the price.

Despite the delays which have occurred in the past and the concerns of the bank that further delay may prejudice their position, I am persuaded by the material which has been filed on behalf of Mrs Pearce and by the submissions made by Mr Pearce that I ought allow the defendants one last chance to realise the best possible price for their property.

There shall judgement in favour of the bank in the amounts which I have described and for possession of the land but I shall stay execution of the judgement until 29 May 2003, thereby allowing to the defendants a period of 60 days after the preferred auction day of 29 March 2003.

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