Barrington Winstanley Group Pty Ltd v Edmonds

Representation: Counsel:
M Pesman SC (Plaintiff)
Solicitors:
Ark Legal (Plaintiff)
J Choy (First and Second Defendant)

File Number(s): 2025/83967

Publication restriction: Nil

REVISED EX TEMPORE JUDGMENT

1. The matter listed before the Court today is a Notice a Motion filed by Sandra Edmonds and David Edmonds (“the defendants”) on 14 October 2025 (“the motion”).

2. The substance of the motion was the seeking of a stay of orders made by Justice Faulkner on 6 August 2025 for, inter alia, possession of property by Barrington Winstanley Group Pty Ltd (“the plaintiff”) until the final disposition of an intended appeal by the defendants from his Honour's judgment, or judgments.

3. An interim stay was granted by Cavanagh J on 14 October 2025. The matter subsequently came before Adams J to consider whether or not there should be an extension of that interim stay.

4. In Barrington Winstanley Group Pty Ltd v Edmonds (Supreme Court (NSW), Adams J, 21 October 2025, unrep) at [1] to [32], Adams J set out the following history of the proceedings, which, for the purposes of this short judgment, I propose to adopt:

“[1] … On 6 August 2025, Faulkner J made orders, inter alia, that the plaintiff, Barrington Winstanley Group Pty Ltd (“BWG”), have possession of property known as 74 Dumaresq Road, Saumarez Ponds (“the property”), which is situated halfway between Glen Innes and Tamworth.

[2] The applicants, Sandra and David Edmonds (“the Edmondses”), who were the first and second defendants before Faulkner J, were debtors of the plaintiff, and their debt was secured over that property with a mortgage.

[3] In the proceedings before Faulkner J, the third defendant was the Legal Aid Commission of NSW, the fourth defendant was Ecosse Bare Fund 12 Pty Ltd, and the fifth defendant was Murray Laws Pty Ltd. The fifth defendant is a law firm and Mr Smits, from that law firm, acts for the first and second defendant, and appeared for them before Faulkner J.

[4] Following the orders made by Faulkner J on 6 August 2025, a writ of possession was issued on 25 August 2025. On 27 August 2025, a notice to vacate was posted to the occupier by the New South Wales Sheriff’s Office to that property.

[5] On 4 September 2025, the BWG’s solicitor sent an email to Mr Smits of Murray Laws also giving notice of the Sheriff’s scheduled eviction on 15 October 2025. As noted, Mr Smits represented both of the Edmonds as at that date.

[6] The day before the scheduled eviction on 15 October 2024, Mr and Mrs Edmonds made an urgent application to Cavanagh J as Duty Judge at about 5:00pm seeking a stay of the execution of the writ of possession, which was scheduled at 10:00am the following morning. They did so ex parte. Mr Pesman SC, who appeared for BWG, was able to appear at short notice, but without any meaningful instructions given the lack of notice.

[7] As Cavanagh J observed, the basis for the application for a stay at that time was threefold.

[8] First, although the Edmondses are the registered proprietors of the property, Murray Laws has a mortgage over it and, apparently, has already obtained possession of it. There was, apparently, an agreement that the Edmondses would then lease the premises back from Murray Laws. Mrs Edmonds claimed before Cavanagh J that although she and her husband were aware of the proceedings in their capacity as registered proprietors, they were not given notice in their capacity as tenants.

[9] I pause to note that this is a somewhat unusual feature of this case. The Edmondses claim to be both tenants and registered proprietors of the property and their own solicitor, who has been acting for them and was the fifth defendant before Faulkner J, claims to currently be the mortgagee in possession of the property.

[10] The second basis for the stay put to Cavanagh J was that the Edmondses have filed a notice of intention to appeal and are currently attempting to seek legal representation to appeal the decision of Faulkner J.

[11] Thirdly, the property is a farm, and in the middle of shearing and lambing season. Mrs Edmonds claimed that if she and her husband were evicted, they would have to kill the sheep, a breeding line would be terminated, and they would suffer significant loss and damage.

[12] Given the lateness of the application brought before Cavanagh J, his Honour was left with little option but to grant a temporary stay of the execution of the writ of possession until 5:00pm today or a further order of the Court.

[13] It is in that context that the application comes before me today for hearing. Mr Pesman SC again appeared for BWG and Mr Moore of counsel appeared for the Edmondses instructed by Ms Shafizadeh, who appeared as agent for Murray Laws who are still the solicitor on the record.

[14] The applicants relied on two affidavits of Mrs Edmonds sworn on 14 and 15 October 2025 with extensive annexures and exhibits. On behalf of BWG, an affidavit of Kelwyn Barrington Hough sworn on 20 October 2025 was read. I have taken the following procedural history from that affidavit.

[15] It should be noted, at the outset, that throughout the long history of these proceedings Mr and Mrs Edmonds have made a number of allegations of fraud and criminal conduct not only against BWG, but also numerous other persons and entities. It is not necessary to go through those allegations for the purpose of these reasons.

[16] The debt owed by the Edmondses to BWG started out as an amount of only $240,520. On 20 May 2022, Darke J entered judgment against Mr and Mrs Edmonds for that debt, which, by then, was $801,116 approximately, including interest plus costs: Barrington Winstanley Group Pty Ltd v Edmonds [2022] NSWSC 531.

[17] On 3 June 2022, a bankruptcy notice was issued against the Edmondses and served between 6 and 11 June 2022.

[18] On 30 August 2022, an application by the Edmondses to set aside the bankruptcy notice was dismissed with costs by Registrar Morgan at the Federal Circuit and Family Court of Australia.

[19] On 2 September 2022, relying on Darke J’s judgment debt and other assessed and fixed costs orders, BWG presented a creditor’s petition against the Edmondses in the Federal Circuit and Family Court of Australia.

[20] It was from around late October or early November 2022 that Mr Smits from Murray Laws began representing the Edmondses in the creditor’s possession and other related proceedings.

[21] On 24 July 2023, the Court of Appeal dismissed the Edmondses’ appeal against Darke J’s orders: Edmonds v Barrington Winstanley Group Pty Ltd [2023] NSWCA 166.

[22] On 30 August 2023, Laing J in the Federal Circuit and Family Court of Australia dismissed the Edmondses’ application to review Registrar Morgan’s decision: Edmonds v Barrington Winstanley Group Pty Ltd [2023] FedCFamC2G 785.

[23] On 27 September 2023, Senior Deputy Registrar Hedge in this Court dismissed an ex parte application by the Edmondses that the judgment debt be paid by instalments.

[24] On 23 October 2023, Nixon J dismissed an appeal from that decision of Registrar Hedge with costs.

[25] On 26 July 2024, Perry J dismissed the Edmondses’ appeal from Laing J’s decision in the Federal Court: Edmonds v Barrington Winstanley Group Pty Ltd [2024] FCA 821.

[26] The creditor’s petition meanwhile was adjourned to 16 August 2024. At the time of that petition, the Edmondses owed approximately $1.5 to $1.6 million.

[27] Settlement discussions were conducted in relation to the creditor’s petition and sealed consent orders were made by Riley J on 16 August 2024. In those sealed consent orders, the Edmondses agreed to pay the reduced amount of $1.1 million in full settlement in two instalments. Significantly, the Edmondses agreed to grant BWG a mortgage over the property in priority to that lodged by Murray Laws as security for the payments.

[28] It would appear that the sequestration orders were made on the basis that they would be set aside when the PEXA settlement occurred. Apparently, due to some timing difficulties with the settlement, the Edmondses were technically bankrupt for a few hours that day.

[29] After the settlement of the proceedings, the Edmondses and Murray Laws attempted to lodge various dealings to obstruct the registration of the settlement documents, including the BWG mortgage, and also attempted to use the farm debt mediation scheme to stop enforcement of that mortgage.

[30] Against that regrettable history of the debt going back to what appears to be 2018, BWG brought proceedings in this division for possession of the property by statement of claim on 3 March 2025.

[31] Two notices of motion with a number of separate orders sought came before Faulkner J on 6 August 2025 in the possession list and his Honour delivered a number of judgments that day. Significantly, his Honour was satisfied that the Edmondses had no reasonable defence and entered judgment for BWG for possession of the land. I note that in the motions before Faulkner J that day, Mr Smits appeared for the first and second defendants whilst being the fifth defendant, despite his Honour expressing significant disquiet about that.

[32] It is not necessary to go through his Honour’s judgment for the purpose of these reasons. However, I note that at [20] and [21] his Honour said this:

‘[20] First, the nature of the claim made by the Plaintiff, as I have indicated, is one capable of ready and definite proof and the material clearly establishes the right for which the Plaintiff contends. If there were to be an issue in this case about whether or not the Plaintiff is entitled to an order for possession it really is a matter for the First and Second Defendants or, one could imagine in certain circumstances, the Fifth Defendant, to articulate a position which vitiates the Plaintiff’s position.

[21] As I have indicated, the Plaintiff has tried twice by formal pleadings and once in Court today to articulate the ‘real issues’ and has not been capable of doing so. It is not the case where, listening to carefully, one can see a broad concept capable of undermining the indefeasibility of title which the Plaintiff has for its Mortgage under s 42 of the Real Property Act 1900. Having read both Cross-Claim and listened to Mr Smits today, the First, Second and Fifth Defendants’ position remains incomprehensible. For that reason, I consider that merely striking out the Defences and ordering the Defendants to file further Defences will be an exercise that in all likelihood will be futile. As I say, there have been a number of opportunities to plead and those opportunities have not been taken.’”

5. At the mid-point of her Honour's judgment, Adams J posed the question: Should the stay of a writ of possession be granted? The ultimate conclusion reached by her Honour was that she would not make a determination in that respect (that is, to grant such a stay or an extension of the stay), but rather, would hold the matter over for the final hearing of the motion. This judgment concerns the final hearing of the motion.

6. The orders made on 21 October 2025 were that, inter alia, “[t]he motion be stood over for final hearing on 7 November 2025 with an estimate of half a day”. There have been various transactions in the proceedings, by way of exchanges with my chambers, in the intervening period. There was no suggestion in those exchanges by either party that anything, other than a final hearing of the motion, was scheduled today.

7. The circumstances in which her Honour, Adams J, came to the conclusion that the matter should be stood over for final hearing may be summarised as follows:

8. First, there was no real prospect of giving effect to the Writ of Possession in the period between 21 October 2025 and 7 November 2025.

9. Secondly, there was no material before the Court in relation to the pending appeal, that would have enabled the Court to hear the stay, to consider the merits of the appeal.

10. Counsel for the plaintiff, Mr Pesman SC, was correct to submit that, each of the judgments given by Justice Faulkner on 6 August 2025 were interlocutory in nature, and accordingly, leave would be required to bring an appeal from those judgments.

11. In her decision, Adams J also considered the potential that new solicitors may be briefed in the matter (Barrington Winstanley Group Pty Ltd v Edmonds (Supreme Court (NSW), Adams J, 21 October 2025, unrep) at [36], [48]). At the hearing Mr Choy appeared as agent for Mr Smits, who is the solicitor on the record for the defendants, and it would appear, also the solicitor on the record for the fifth defendant, being an entity which Mr Smits is associated with. I made some observations during the hearing about Mr Smits appearing on the record in the proceedings, but do not propose to say anything further about that in this judgment. The concerns, in my view, are obvious and have been the subject of earlier reference in the judgments of this Court.

12. There was a suggestion by Mr Choy, that the matter may have been listed for mention, to set a timetable for final hearing. There would seem to be at least a hint of such a proposition in some affidavits, which were received by the Court on the motion, but not read in the proceedings for today.

13. The notion that the matter was listed for listed for mention today is nonsense. There is nothing in the record before the Court which would indicate the same. The decision of Adams J made it abundantly clear that the motion would be heard today, and did so in a particular context, in which, whilst no extension of the stay was granted, no enforcement action would be taken by the plaintiff in the intervening period. Various affidavits were filed in anticipation of a hearing. In any event, when Mr Choy was appraised of that fact, he indicated that he did not have instructions to proceed with the application for the stay, that is, to press the motion today.

14. Significantly, the step that Adams J contemplated be taken before the 7 November 2025, namely, the filing of an appeal (or, one may interpolate, a summons for leave to appeal) from the judgment, or judgments, of Faulkner J, has not occurred. While the material is not before the Court in any formal way, I note that there would appear to be a Notice of Appeal in existence. So much is evident from a white book which was provided to my chambers but which has not been formally filed with the Court, and was also suggested in affidavits that have been filed with the Court but not read on the motion.

15. I give that brief summary, in addition to the history provided by Adams J and, in many respects, the history earlier provided by Faulkner J, to demonstrate that the procedural history of the matters since the bringing of the Statement of Claim by the plaintiff is unfortunate.

16. In any event, it is a complex set of processes, in many respects reflected by the Notice of Appeal to which I have referred which, again, raises as many questions as it answers, in terms of the form of the motion.

17. Mr Choy properly acknowledged, in my view, that:

18. the time for the bringing of the appeal had passed;

19. that his instructions as agent did not extend to the pressing of the motion; and

20. given his assessment that the appeal was out of time, it was conceded that the motion should fail.

21. Whether for that reason, or because of the procedural history I have outlined, or because of the other deficiencies in the process to which her Honour, Adams J referred, I am firmly of the view that the motion should be dismissed with costs.

Orders

17. The Court makes the following orders:

18. The Notice of Motion filed 14 October 2025 is dismissed.

19. The applicants on the motion are to pay the respondent's costs of the motion as agreed or assessed.

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Amendments

17 November 2025

Amendment to error in case name.