Campbell v Illawarra Golf Club Pty Ltd

Mr Hawkins' defence 19In opening Mr Hawkins explained that the evidence would show that neither Mr Birch nor Ms Tarrant had been legally represented in the transactions with the Links Group or the Bank. They were not the Bank's customers. Links Invest Co No 2 Pty Ltd, obtained the borrowings after a proposal which it put to the Bank, which made no mention of Mr Birch or Ms Tarrant. The Links group then already had a number of facilities with the Bank. 20The contracts by which the arrangement which Mr Birch and Ms Tarrant entered for the redevelopment of the golf course were prepared by Links' solicitors. The Bank prepared the mortgage and guarantee documents. Mr Birch and Ms Tarrant did not undergo any credit assessment as to the guarantee which they were providing. 21In August 2006, Mr Birch and Ms Tarrant's obligations to the Bank ceased. At that time the Links Group was in default of its obligations to the Bank. But for misconduct at the Bank, the facility would not have been extended beyond 2006, at a time when, unbeknown to Mr Birch and Ms Tarrant, the Links' group's borrowings had increased from $13 million to $34 million. Had they been aware of this, that would have caused them to question the guarantee they had given. 22The evidence would also show that Mr Birch and Ms Tarrant understood that the borrowings had been repaid and that their guarantee had come to an end. In the result, between 2006 and 2009 the Bank had not complied with its own code of banking practice in relation to their guarantees. Further, while letters of non-waiver had been issued to the borrower, Links Investco No 2, further funds were then loaned to the Links Group and the Bank entered into a joint venture with it, in the Whitsundays. 23There was also massive forbearance by the Bank, to the prejudice of Mr Birch and Ms Tarrant, when guarantees given by directors of Links companies were released, in circumstances where it was Links which should have repaid the $5 million.

The evidence 24The plaintiffs' case was largely documentary. Affidavit evidence was led from Mr Campbell, Mr Karolczak, the Bank's solicitor and Ms McComb, the Bank's director of Group Strategic Business. They were cross-examined. Mr Hawkins gave evidence and called evidence from Mr Birch and Ms Tarrant. He also relied on various documents.

The Bank's evidence 25Mr Birch and Ms Tarrant acquired the property in 2002, partly with funds of some $1.5 million then borrowed from De Groot Industries Pty Limited, which was granted a mortgage over the property in respect of that borrowing. That mortgage was discharged in 2004, when a new mortgage was entered with a firm called Capital Access Holdings Limited, in respect of borrowings of some $3 million. That mortgage was discharged in August 2004, when $4 million was borrowed from Edcay Pty Ltd, in circumstances Mr Hawkins gave evidence about. 26Edcay's mortgage over the property was discharged shortly afterwards, with money then advanced to Mr Birch and Ms Tarrant by the borrowings obtained from the Bank by Links Investco No 2. The balance was paid in accordance with a direction given by Mr Hawkins on behalf of Mr Birch and Ms Tarrant. $4 million was used to repay Edcay and the balance to repay their other borrowings and debts. This borrowing was secured by the mortgage and guarantees given by Mr Birch and Ms Tarrant. 27The effect of the four agreements earlier referred to was that Mr Birch and Ms Tarrant would be paid $5 million for the property; they would also share half the increase in the capital gain resulting from the redevelopment, if it proceeded, less expenses incurred in obtaining that approval; and that in the meantime, the $5 million borrowings would be advanced to them. If the sale did not proceed, the $5 million was to be repaid. 28Mr Hawkins' involvement in the sale of business agreement resulted from certain representations he had made to Links, as to the golf business being conducted at the course. 29The Bank provided the funds to the borrower, Links Investco No 2 in September 2004 under an accommodation bill facility. It then advanced the $5 million to Mr Birch and Ms Tarrant. For their part, they provided the guarantee and indemnity to the Bank, which they executed on 20 September 2009. It was secured by the registered 'all monies' mortgage which they also then granted over the property, as well as a general mortgage over the rights which they had certain Crown land. The registered mortgage gave the Bank recourse to the property, in the event of default. Links Group Holdings Pty Ltd also provided the Bank a guarantee. 30The mortgage expressly provided that the Bank could not pursue Mr Birch and Ms Tarrant for any shortfall, in the event of default. In that event Clause 25.3(d) of the mortgage gave the Bank the right to appoint receivers to take possession of the property. The plaintiffs were appointed receivers by deed of June 2011 under that clause of the mortgage. 31Approval for the proposed redevelopment was pursued from 2005 to 2008. Mr Hawkins was actively involved in various steps then pursued with the Wollongong City Council and the NSW Department of Planning. The original proposal was rejected. Approval was then pursued with the Minister for Planning. 32Links' bill facility with the Bank expired during this time, but the Bank did not call in the loan. Various extensions were agreed. On 22 December 2008, the Bank issued another extension, permitting the facility to be operated up to 27 February 2009, so that the redevelopment could be pursued. 33Approval for the redevelopment was granted by the Minister in January 2009, but in terms different to those originally sought. That, coupled with the effects of the global financial crisis, had an impact on the potential profitability of the proposed redevelopment. The property was again valued, with the result an 'as is' valuation with the development approval obtained, of only some $3 million. 34The result was that the sale of the golf course did not proceed. The Bank sought repayment of the loan from Links Investco No 2 and the registered proprietors. The borrowings were not repaid and Mr Birch and Ms Tarrant then unsuccessfully sought to refinance. 35In May 2010 the Bank agreed with them that it would forbear from enforcing its mortgage for a further period. Mr Birch and Ms Tarrant then entered a deed (the 'Standstill Deed'), by which they acknowledged that the guarantee and mortgage remained in force; that events of default had occurred and were continuing; that repayment had validly been demanded of them; that they had asked the Bank to forbear for a further period; that it was entitled to enforce its mortgage; that they consented to judgment for possession of the property; that they would not take any steps to defend proceedings commenced by the Bank for such relief; and that they would consent to judgment for possession being entered against them. 36Mr Birch and Ms Tarrant did not obtain the refinance which they then sought, despite ongoing efforts by Mr Hawkins with various potential lenders. On 11 February 2011, they were given notice that the Bank would forbear no longer and it gave 7 days' notice that it required repayment. That was again extended but on 17 June notice was given that steps would be take to enforce its security. 37In the result, on 30 June 2011 the Bank appointed Mr Campbell and Mr Strawbridge as the receivers of the property, pursuant to the power granted the Bank under the mortgage. The receivers notified the defendants of their appointment and in August 2011 demanded of them and other occupiers of the property, that they give vacant possession of the property. 38The defendants failed to comply with that demand. As I have explained, the Bank later resolved its claim against all other defendants. Only Mr Hawkins resists the possession it sought. 39Mr Karolczak was shortly cross-examined about from whom he had obtained certain documents, which had been tendered without objection. 40Mr Campbell was cross-examined as to various documents, including the Deed by which the plaintiffs had been appointed receivers by the Bank. He was also asked whether he had read the 'Standstill Deed' which Mr Birch and Ms Tarrant had entered with the Bank, the proper law of which was specified to be that of Victoria. This was not a matter raised in Mr Hawkins' defence and seemingly had no relevance to the issues here arising to be determined. He was also cross-examined as to the mortgage and who had signed various documents. It was conceded that neither Mr Birch nor Ms Tarrant, who were not parties to the mortgage, had signed the memorandum. 41Mr Campbell confirmed that nothing which had come to his attention since his appointment had caused him to question that appointment and that he was satisfied that he had powers under the deed of appointment, to deal with the property. Nothing advanced by Mr Hawkins suggested that Mr Campbell should have had any concern about such matters. 42Ms McComb was cross-examined as to her understanding of the circumstances in which the Links Investco No 2 borrowings went into default in 2009 and what the Bank did to recover those borrowings. It then issued default notices. That did not result in repayment of the $5 million, but the Bank did not pursue Links. Ms McComb explained that its preferred course of action had been to pursue Mr Birch and Ms Tarrant, that being what it considered gave it the best chance of recovery of the debt. 43Ms McComb was also cross-examined about various documents which dealt with the entire extent of the Links Group's borrowings from the Bank at particular times, its policies about aggregation of debts and its release of certain guarantees given by other people, as well as other transactions in which the Links Group was involved, at Sanctuary Lakes and Sandhurst for example, in which it had granted a non-share equity interest in itself. Ms McComb said that the Bank did not necessarily have direct involvement in those transactions, or copies of the final documentation, the details of which she was plainly not familiar with. 44Ms McComb confirmed that she had reviewed the Bank's file in relation to these proceedings, which were already on foot, when she was appointed to her present position. She had not then examined the underlying mortgage document. She confirmed that she had not seen a credit assessment undertaken in relation to Ms Tarrant or Mr Birch. An exchange emerged from an objection to this line of questioning to the following effect: "Q. And the evidence is that as you took over the file in 2000 and February 2013, you were not aware of whether or not either of the guarantors had the standing to meet the call if the guarantee was called on? HER HONOUR: I just don't understand the question. If it's a guarantee which is limited by reference to the property, what does that question mean? SECOND DEFENDANT: With due respect, your Honour, the guarantee is not so limited. The guarantee refers to the registered property sorry, the property owned by the registered proprietors, but in the event that the property were worth the exact figure that it was worth at the time, and Links went into insolvency which apparently it's done, the situation is that this bank would call upon the property to be sold. When the property was sold, the guarantee hasn't been satisfied because it's for $5 million. HER HONOUR: I'm sorry. Perhaps I misunderstand something about the case. I understood it was common ground between the parties that the terms of the guarantee permitted the bank to have recourse only to the property, and if on realisation of the property there was some shortfall, the bank had no right to further pursue the guarantors. Is that the bank's position? SPENCER: It is, your Honour, and your Honour, I don't know whether there's a misunderstanding of what this case is about, but the case is about a block of land. There was an annexure to the guarantee, annexure A, and I might just trouble your Honour to read a bit of it out because it might clarify the situation, that the guarantee extends to the whole of the maximum amount referred to in the principal clause, but then it said, "Arising from the non-observance of your obligations to pay money due to us", but then all of that is qualified by, "Only to the extent necessary to enforce our rights in relation to the property mortgage by the mortgage". And if that wasn't clear enough on its own, then: "If we do not recover all the money owing to us in connection with the non-observance of your obligations to pay money under this guarantee and indemnity and the mortgage by enforcing the rights referred to in 6.2 which are the rights relating to the property, we may not seek to recover the shortfall by bringing proceedings against you or proving in your insolvency." I would have thought it was palpably plain that this is a guarantee signed to allow the bank to enforce the mortgage effectively, that that is the subject of these proceedings, and nothing more. HER HONOUR: Against the property? SPENCER: Against the property, that's it. SECOND DEFENDANT: If that is the concession, I'm very happy with that, your Honour. Not that I was unaware of the clause, but when you've got the elective which is made, but now we've got the concession from the plaintiff. SPENCER: Your Honour, it's not a concession. It's been what these proceedings have been about since day one, and that issue has never been raised prior to this time." 45Ms McComb was also cross-examined as to her knowledge of the Bank's sponsorship of the AFL in Victoria and the connections between people involved with the Links Group and the AFL and certain football clubs. Her evidence was that not upsetting such a person had not been a consideration, from the Bank's perspective, in its pursuit of the guarantees given by Mr Birch and Ms Tarrant.

The evidence called by Mr Hawkins 46It is convenient to observe at this point, that I have carefully considered the evidence given by Mr Hawkins, Mr Birch and Ms Tarrant. I am not convinced that they gave their evidence strictly in accordance with their oath. In parts they each gave evidence which was plainly self-serving and contradictory and contradicted, by various documents in evidence. In the result, I take the view that their evidence has to be approached with considerable caution. 47From Mr Birch's evidence in cross-examination, it emerged that his affidavit was the result of a process involving he and Mr Hawkins combining their recollections of certain events. It follows that particular attention had to be paid to his evidence in cross-examination. 48It is also convenient to observe that various documents established that the case which Mr Hawkins said in opening would be established, was not made out. For example, in evidence is a 15 September 2004 Bank document, by which its proposal for the financing of the redevelopment of the of the golf course is outlined. Contrary to Mr Hawkins' assertion that what Links proposed to the Bank had not even mentioned the position of Mr Birch and Ms Tarrant, that document not only refers to Mr Birch and Ms Tarrant, it provides that they are to provide a limited recourse guarantee and indemnity in respect of the proposed $5 million borrowing and to provide a registered first mortgage over the property. The agreements which they entered accord with that proposal. 49Mr Hawkins tendered a number of other documents relating to other dealings between the Bank and the Links Group, including documents concerning other developments which it pursued. Those documents do not establish a basis upon which it can be concluded that the plaintiffs are not entitled to the possession which they seek in these proceedings. That they concern matters which the Bank should have disclosed to Mr Birch and Ms Tarrant was also not established. 50Mr Hawkins was for some 10 years a practicing solicitor, a partner in a number of firms. He is not now in practice, but on his evidence prior to their bankruptcies he and Ms Tarrant, who is a practising nurse, were for a number of years involved in significant property development. From their evidence it is as the result of the failure of certain other property ventures in which they were involved, that they are now both bankrupts. In cross-examination, Ms Tarrant explained that she understood that the Bank was seeking possession of the property, but not why, but that she had appreciated that when she moved to the golf course, after her bankruptcy, that it might obtain such possession. 51Ms Tarrant's evidence was that it was Mr Hawkins who had been the driver of these various commercial dealings, that she knew that he had been a solicitor and that she looked to him for advice and was guided by him as to the wisdom of these dealings. 52On Ms Tarrant's evidence she and Mr Hawkins married in 2001. After they acquired the golf course, she and Mr Birch appointed Mr Hawkins the manager of the golf course and the development manager of the proposed development. He remained employed in that capacity. She had financed her initial share of the purchase price of the golf course with moneys borrowed from her mother. 53Mr Birch explained in cross-examination that he had financed 10% of his share of the purchase price, some $250,000 himself, by borrowing on his own home. It was he, Ms Tarrant and Mr Hawkins together, who negotiated the purchase. They had also borrowed an interest only sum of some $1.5 million from a Mr De Groot, which was secured by a mortgage over the property. His solicitor Mr Kirkby had then independently advised him. 54Later that loan was repaid and some $3 million was borrowed from Capital Access Holdings Ltd. He was not involved in those negotiations, Mr Hawkins had handled them. The increased borrowings were used to finance improvements and to repay his borrowings. He then retired the mortgage on his home. He had in the meantime put further money into the project which he could not quantify, as well as his time and effort. He also explained that he later used the $500,000 he had obtained from the $5 million obtained from the Bank, to pay out most, but not all of the debts which had accrued on the golf course. 55On Mr Hawkins' evidence the idea of the redevelopment of the golf course into a golf resort, including a residential development, was his. Mr Birch's evidence was that this idea was pursued, after attempts to sell the property failed. 56Mr Hawkins said he represented Ms Tarrant in the negotiations with potential investors with whom he and Mr Birch investigated the redevelopment proposal. Mr Birch was also variously involved in the negotiations, but at various times he was also represented by Mr Hawkins. One such potential investor was the Links Group. Mr Birch said it was Mr Hawkins who took the lead in the negotiations, but all three of them were involved. 57In 2004 an agreement was arrived at with the Links Group, after negotiations in which Mr Birch said he was involved. Mr Birch also said that he had received weekly updates on the negotiations from Mr Hawkins. He also recalled discussions with both Links' representatives and with their lawyers, in the lead up to the execution of the documents. He also recalled having discussions with a Bank representative, Mr Hardy. In cross-examination he said he was not sure if he had seen drafts of those agreements. Mr Birch explained he was then living and working at the golf course. It then had a turnover of a couple of million dollars. 58Mr Birch also explained in cross-examination that he had previously operated his own business, a computer medical database for subscribers. He was the director of that business, which owned its own premises, employed staff and operated an overdraft. He said that he understood that if he signed a contract he was bound by its terms. When he signed the four agreements with Links, he, Mr Hawkins and Ms Tarrant met with Links' solicitor, Mr Rennick of Maddocks and worked through the documents. He signed them because he broadly understood them, Mr Hawkins having made comments and a recommendation about them, but he had not read them. 59Mr Birch said that he then understood that Links was the borrower and that $5 million was going to be lent to he and Ms Tarrant. He also understood that if the deal fell over, the money had to be paid back, but insisted that if the development approval was not obtained, that it was Links who had to repay the $5 million, even though in his affidavit he had said that in that event "Links as the borrower from the NAB would have to make alternative arrangements for the loan of $5 million pending refinance by Ms Tarrant and myself". That understanding accorded with the terms of the loan agreement, which provided for repayment of the $5 million to Links, in such an event. 60Mr Birch agreed that when he entered the De Groot mortgage and the Capital Access Holdings Ltd mortgage, he had an understanding that the purpose of a mortgage was to secure borrowings and to permit the property to be sold, if the borrower did not comply with its obligations. Despite this, Mr Birch claimed that he did not understand that the purpose of the Bank's mortgage was to allow it to sell the golf course, if the loan was not repaid. This evidence was not plausible. He signed the mortgage, he said, because Links required it, expecting to make a return. He explained that if the sale went through, it was intended that his family trust would share in any resulting profit. 61When pressed, Mr Birch said that he was confused and having problems recalling dates and times and documents which he had signed. Then he said that that he did not know what the loan agreement provided, because he had not read it, but said that he may have been told about it afterwards, or during, he just did not know. 62When asked his understanding of these proceedings, he said that he did not understand that they were only concerned with the Bank obtaining possession of the property. He said that Mr Hawkins had suggested that there was a request that the mortgage be set aside. 63Ms Tarrant said that she had relied on Mr Hawkins, Mr Birch, Bank representatives and Links' lawyers to ensure that her interests were protected. In cross-examination she said that she had signed the documents which Mr Hawkins had negotiated, trusting him, Links and the Bank. Before she signed the documents, she had satisfied herself through Mr Hawkins that it was in order to sign the documents. 64Both Ms Tarrant and Mr Birch said that they had not read the agreements with Links before signing them at the offices of Maddocks and in re-examination Ms Tarrant said that Mr Hawkins had not explained the mortgage guarantee or memorandum to her. Again, this evidence was not plausible. 65Mr Birch said that when they signed the agreements, Mr Hawkins had told him that they probably needed legal and financial advice, but that they didn't have time to obtain it. He had never sought independent legal advice and had relied on representations made by Links and the Bank, as well as their officers and employees, when signing the documents. Some days later they signed the mortgage documents, which were witnessed by another solicitor who Mr Hawkins knew. 66Neither Mr Birch, Ms Tarrant nor Mr Hawkins recalled obtaining copies of the documents that they signed. Mr Birch said Mr Hawkins first provided him with a copy of the mortgage in 2012 and that he had never obtained a copy of the guarantee. 67Despite all of this evidence, documents and evidence given by Mr Hawkins shows that various solicitors were engaged to represent Mr Birch and Ms Tarrant in their dealings both with the Links Group and with the Bank, at particular times, including when agreements were being negotiated. Even if Mr Birch and Ms Tarrant did not bother to read the documents which they signed, the solicitors who represented them must have. At some times, it was clearly Mr Hawkins who was both representing and advising them in the negotiations. He, too, must have read the documents, in order to give Mr Birch and Ms Tarrant the advice they said they had received from him. 68Mr Birch's evidence was that he had understood, amongst other things, that if the sale did not proceed, Links would forfeit the $5 million advanced to him and Ms Tarrant and that he was not told by anyone that he was giving a guarantee. Mr Birch did not, however, explain how he came to have such an understanding. It is an understanding which is entirely inconsistent with the agreements which he entered, which included a term for example, in the sale of business agreement that if the vendors terminated the agreement, that they had to refund all of the monies paid to them (cl 8.4). 69Mr Birch said that he had agreed on several occasions to extend the development and sale agreements, so that the approval process could be pursued after 2006, but that he then understood that the guarantee and the mortgage had expired in 2006. How he came to have that understanding was also not explained. That was not what the documents which he executed provided. 70Ms Tarrant also said in her affidavit, that she did not understand that she was guaranteeing that she would repay the $5 million, if it was not repaid by Links and that she would not have given such a guarantee, had she understood this, given that she would not have been able to meet such a commitment. This evidence was also difficult to credit, given the existing borrowings and debts which the $5 million advance was used to refinance. 71Ms Tarrant also said that she understood the money was being loaned to her and Mr Birch as a deposit, but she did not say that she understood that the deposit would not have to be repaid, if the sale did not proceed. 72Mr Hawkins' affidavit evidence was that it was he who first spoke in 2004 with Mr Cleaver of the Links Group, after reading an advertisement in The Financial Review. He later met with other of its officers and its solicitor Mr Rennick, a partner of Maddocks. A few weeks later draft agreements were sent to him. He placed those documents before Mr Birch and Ms Tarrant as neither of them "had previously been involved in a property development." He then spent some time going through the various acquisitions and financing problems, before a decision was made to proceed with Links. More draft agreements were then provided and a final set of documents was executed at Maddocks Sydney offices. 73Mr Hawkins claimed that beforehand, it had not been revealed to them that Links would need to borrow the $5 million, or that a mortgage would be required. He also claimed that initially Links wanted to take title to the golf course, but he objected, because there was no guarantee that there would then be any payment of any increase in value, following approval of the development. He also claimed that Mr Cleaver told him that the Bank wanted an equitable mortgage over the property, which would not be registered and that was what he advised Mr Birch and Ms Tarrant to proceed with. He also claimed that he never discussed with Mr Cleaver, there being any guarantee or indemnity being provided by Mr Birch and Ms Tarrant. Mr Hawkins also claimed that he had no discussions with the Bank about the mortgage or its repayment until August 2006. He was not told of the terms on which Links had borrowed the money from the Bank. 74None of this evidence was credible. 75Mr Hawkins also said that it was he who, in August 2006, was asked to have Mr Birch and Ms Tarrant sign a roll over letter with the Bank, as more time was needed for the development approval. The four original agreements were then also extended. He and Mr Birch discussed this and agreed to proceed. 76Ms Tarrant said that the loan to Links was extended on many occasions after the expiry of their loan agreement in 2006, but that she would not have signed the extension letters for the loan, if she had understood that the mortgage and guarantee were also being extended. She had signed these documents, taking the view that the Links borrowings were no longer her concern, because she believed that the mortgage and guarantee had expired in 2006. What that belief was based on, was not revealed. 77Mr Hawkins' evidence was that in July 2010 Links was advised that the registered proprietors had terminated the four agreements and that they then took possession of the golf course, which Links then ceased to operate. 78In cross-examination, Mr Hawkins agreed that he had some 30 files relating to this transaction, but had not produced any documents from those files. He agreed that with his legal training and experience, he had had no difficulty reading or understanding the various documents involved in the transaction. He claimed, however, that he had not read or explained the documents to his wife or Mr Birch. He agreed, however, that the documents were finalised over the course of a month, at a time when a solicitor was acting, but he said, only to pacify a group of bikies associated with Capital Asset Access Holdings Ltd, not with the negotiation of the agreements. The obvious inference from this evidence was that the documents which Mr Hawkins failed to produce, would hot have assisted his case. 79Mr Hawkins also agreed that he was then pushing Links for a settlement, for reasons to do with the need to repay Capital Access Holdings Ltd and that in emails exchanged by him and Mr Rennick, changes to the documents had been negotiated, including warranties that he had to give himself. He also acknowledged that a solicitor, Mr Scott, advised Mr Rennick that his clients, Mr Birch and Ms Tarrant, had approved of the changes to the documents. Mr Hawkins also accepted that it had been agreed the executed documents were to be held in escrow, pending the Bank obtaining a valuation of the property which it accepted. The guarantee and mortgage were executed later in September. He also agreed that he gave advice when Mr Scott ceased to act and that afterwards neither he, Mr Birch nor Ms Tarrant used a lawyer. 80On all of the evidence, I am not able to accept that the terms of the various agreements, the guarantee and mortgage were negotiated and settled before Mr Birch, Ms Tarrant and Mr Hawkins executed them, without the assistance of any legal advice or without him reading the documents. 81Nor do I accept that Mr Hawkins was precluded from considering or understanding what was being agreed beforehand, because he was under police protection, away from his office beforehand, because of death threats and so unable to read the documents. That was why he took a bridging loan from Edcay, to overcome his problems, he said, with the Commancheros. He was certainly anxious to refinance the Edcay borrowings and certainly in email communication at the relevant time. I simply do not believe his evidence, that he never considered or checked what he, Mr Birch and Ms Tarrant had agreed under the documents which he had then negotiated with the assistance of a lawyer and which they signed, in order to obtain the funds which they needed to repay the Edcay borrowings. 82Mr Hawkins agreed that Mr Birch and Ms Tarrant had had the use of the $5 million and had never repaid it, even though the sale did not proceed. He was cross-examined as to his understanding of the loan agreement and the circumstances in which it might be extended or terminated. At one point he agreed that it provided for repayment of the borrowings in the event of termination. Indeed, in August 2006 Baker and McKenzie were instructed to deal with the Bank, in order to bring their obligations to the Bank to an end, by repayment on refinancing of the loan. Instead, the agreements were finally extended, by a deed of variation executed by Mr Hawkins, Ms Tarrant and Mr Birch, so that the redevelopment could be further pursued. There were further extensions later signed in 2007 and in 2008. 83I do not accept Mr Hawkins' evidence that the extensions agreed in 2007 and 2008 were only signed by Mr Birch and Ms Tarrant, in order to support Links in their borrowings. 84Mr Hawkins' claim that their guarantee had expired in 2006, has simply no foundation in fact. To the contrary, Mr Hawkins' response to letters of demand sent by the Bank's solicitors in October 2009, seeking repayment under their guarantee, was not a claim that the guarantee and mortgage expired in 2006. No such suggestion was forthcoming. Instead, a solicitor, Mr Mulally, was engaged and Mr Hawkins instructed him to advise that steps had been taken by Mr Birch and Ms Tarrant to discharge the mortgage by 23 December. That was consistent with Mr Birch's evidence that he was aware in 2009 that Links had not repaid the loan. 85I do not accept Mr Hawkins' evidence that Mr Birch and Ms Tarrant were then prepared to pay out Links' indebtedness, so that the development could proceed. Nor did I accept that he was concerned that he might be liable for all of Links' borrowings. Had the guarantee and mortgage to which he was never a party expired in 2006, as he claimed, in 2009 there was nothing to release. The guarantee and mortgage were non-recourse. Even if sale of the property did not release $5million, Mr Birch and Ms Tarrant could not be further pursued. 86Mr Hawkins also explained that after he was made a bankrupt, he had been approached by a company based in Bahrain, which was prepared to loan him some $35 million, with which he could buy his way out of his bankruptcy. He claimed that he had received a letter of approval from Bahrain for $100 million, but did not have the $365,000 which he needed to get the loan remitted to Australia. This evidence was not supported by the documents and on its face, seems simply fanciful. 87Mr Hawkins also said again that the documents which Mr Birch and Ms Tarrant had executed were for two years and expired in August 2006, but when pressed accepted that it was agreed that they be extended, because he and Mr Cass and Mr Hardy of Links then believed that they were close. That, it seems to me, reflected the real position. The agreements were extended after 2006, as Mr Hawkins well knew, because he, Ms Tarrant and Mr Birch wanted the development approval to be pursued by Links. They acted in accordance with that understanding. 88Later, various terms of settlement were negotiated by Mr Mulligan, to which it was proposed that Mr Hawkins would be a party, Mr Hawkins explained, because he then thought that he had been a party to all of the transactions and because he had 'the conduct of the matter between myself and Links' and he had had conversations with the Bank, which would call on him. 89Ms Tarrant's evidence was that she was not told in 2009 that Links had decided not to proceed with the sale and had never been advised of this by Links. She said, however, that there were heated discussions between her husband and Mr Cass of Links, at the time that the Standstill Deed was negotiated and that Mr Hawkins had told her that the Bank had appointed Deloitte to wind up Links. She said that she signed the agreement understanding that she was helping Links to solve a temporary problem. That is not what the Standstill Deed later agreed provided. Ms Tarrant also said she would not have signed the Standstill Deed, if she had not believed that the mortgage and guarantee given in favour of Links had not expired in August 2006. Given the terms of that agreement and the other evidence I have referred to, I simply do not accept that evidence. 90Mr Birch's evidence was that Mr Hawkins witnessed both his signature and that of Ms Tarrant on the Standstill Deed. He also said in cross-examination that he was not sure that he had read this document through, before signing it. He was then aware that Mr Hawkins had been making attempts to refinance, in order to pay out the Bank and he was in favour of those attempts, but said that would not have settled the position with Links, which he considered ought to have repaid the loan. 91In April 2010 the $5 million had still not been refinanced and Mr Mulally's retainer was terminated. Mr Birch and Ms Tarrant then for a time engaged another solicitor, Ms Flynn. A further indulgence was sought of the Bank. Eventually the Standstill Deed was delivered to the Bank's solicitor on 5 May, by Mr Hawkins. He did not accept that the agreement was for Mr Birch and Ms Tarrant to acknowledge that the loan was in default and that they were consenting to the Bank having possession of the property. I do not accept Mr Hawkins' evidence that he was not aware of its terms. It, too, was simply not credible.

The provisional exhibit 92By paragraph 40(iii) of his defence Mr Hawkins pleaded: "40. The National Australia Bank has allowed the Links Living Group of companies to receive and use the proceeds of sale of its investments that were the subject of loan facilities, liens, mortgages, guarantees and indemnities, without reduction in the indebtedness to the Bank. Particulars ... (iii) Sale of Sanctuary Lakes and Sandhurst projects to Babcock & Brown Residential Land Partners on 7 September 2006 for $35M in cash and 8,700,000 shares in BLP as it was then listed on the ASX." 93Mr Hawkins sought to tender an internal Babcock & Brown document, produced under subpoena, as to a risk assessment which it conducted of a transaction with the Links Group, by which it was to obtain a certain shareholding in the Group. 94I received the document provisionally, marking it provisional exhibit 23, not being convinced as to its relevance to the question of whether the plaintiffs were entitled to the possession which they sought. I invited Mr Hawkins to address that question in his submissions. He did not do so. 95In those circumstances, and having now considered the document, I cannot see its relevance. Its tender is accordingly refused.

Mr Hawkins has no defence 96Mr Hawkins' case, as finally put, on was on the basis that he is in occupation of the property pursuant to his agreement with the registered proprietors, who employ him in connection with the operation of the golf course. His family resides there with him. 97There is nothing in such an employment relationship which could conceivably provide a basis upon which Mr Hawkins can defeat the plaintiffs' right to the possession which the registered proprietors have agreed the Bank is entitled to have under the terms of the Standstill Deed which they entered. Nor has he established any term of that employment, which gives him any right to the possession of the property which he claims. To the contrary, the evidence does not establish what the terms of his employment are. 98Nor was it suggested that he had ever been granted a lease of the property. Given the terms of the mortgage, even if he had been, that would not have been binding on the Bank. As discussed in Olde v Metro Surf Australia Pty Ltd [2012] NSWSC 618 where Windeyer AJ observed at [12]: "In the instant case there is no lease. It is not suggested as between the plaintiff and second defendant that there ever was a lease. What is suggested is that there was a license to occupy the premises. I accept that there was a license. There is some question as to whether or not it was gratuitous. Until evidence was given in Court this morning there was no evidence that it was a contractual license. The evidence as to some payments from time to time when moneys were available may have turned it into a contractual license but in the circumstances all that would have meant was that whereas the license was not immediately terminable on notice it was terminable on giving reasonable notice. That seems to me to be the position here at best for the second defendant." 99As he finally pressed his case, Mr Hawkins' right to possession was said to be established by the fact that he had been there since 2002; that he was the superintendent of the golf course and in possession of it; that he was the agent of the registered proprietors and occupying the golf course with their consent; and even though he was a bankrupt, it was his home and the place where he was employed. These submissions simply establish no basis for his claim to possession. As the registered proprietors' agent, his rights can climb no higher than theirs. 100By his defence Mr Hawkins also sought to challenge the validity of the appointment of the receivers, by attacking the Bank's registered mortgage as having been created as a consequence of various alleged deceptive and misleading conduct on the part of the Bank and others, which at one point he described in his submission 'as verging on the corrupt'. He also alleged, amongst other things, that their appointment was the result of a conspiracy between the Bank and others, to cheat and deprive Mr Birch and Ms Tarrant of the property and that the Bank was in breach of various representations it had made to them, including that the mortgage would not be registered. 101The evidence did not establish the serious allegations which Mr Hawkins so advanced by his defence. Given the seriousness of the allegations which he made, the evidence had to be approached bearing in mind the requirements of s 140 of the Evidence Act 1995 which provides: "140 Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged." 102This provision was considered in Morley v Australian Securities & Investments Commission [2010] NSWCA 331; (2010) 247 FLR 140 (overturned but not on this point, see Australian Securities and Investments Commission v Hellicar [2012] HCA 17; 286 ALR 501). There it was observed at [735] that the section "in large measure encapsulates in statutory form the relevant observations in Briginshaw v Briginshaw" and further at [738] - [740]: "738 Dixon J's focus of attention in Briginshaw v Briginshaw was upon observations in certain authoritative legal texts which, with respect to the civil standard of proof, acknowledged that "the degree of satisfaction demanded may depend ... on the nature of the issue" (at 361). His Honour said, in the frequently cited passage at 362 - "[R]easonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of a fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences." 739 Although it has not been cited frequently in subsequent authority, no doubt because of the exceptional respect with which Dixon J is treated, the equivalent reasoning of Rich J in Briginshaw v Briginshaw at 350 is also worthy of note - "In a serious matter like a charge of adultery the satisfaction of a just and prudent mind cannot be produced by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion. The nature of the allegation requires as a matter of common sense and worldly wisdom the careful weighing of testimony, the close examination of facts proved as a basis of inference and a comfortable satisfaction that the tribunal has reached both a correct and just conclusion." 740 In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd the joint judgment quoted from Briginshaw v Briginshaw and said at 17 - "[T]he strength of the evidence necessary to establish the fact or facts on the balance of probabilities may vary according to the nature of what is sought to prove. Thus authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary where so serious a matter as fraud is to be found. Statements to that effect ... should be understood as ... reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach to the court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct." 103It was not in issue that the registered proprietors never borrowed money from the Bank; that the moneys secured by its first registered mortgage were advanced to one of the Links companies; that the Links Group already had a relationship with the Bank; that this advance was secured by the guarantees given by Mr Birch and Ms Tarrant and by other guarantees, as well as by the mortgage given over the golf course; and that Links paid the $5 million to Mr Birch and Ms Tarrant as a deposit for the agreed purchase price. It was also not in issue that the Bank has only pursued Mr Birch and Ms Tarrant for repayment of the $5 million and not the borrower or other guarantors. 104There was no evidence which provided any explanation for how it was that Mr Birch and Ms Tarrant came to have an understanding that the mortgage and guarantee had come to an end in 2006. No document in evidence provided a basis for such an understanding and they did not act in accordance with such an understanding. To the contrary, various documents which they later signed in order to extend the borrowings and the agreements with Links were entirely inconsistent with them having such an understanding. That the Bank did not seek payment from them, until 2009 takes the matter no further. That is a reflection of the consequences of the various extension agreements which they entered. 105The mortgage and guarantee which Mr Birch and Ms Tarrant gave, are not in unusual terms. By registration of the mortgage, the Bank obtained a statutory interest in the property under the Real Property Act 1900. Section 60 of the Act entitled it to bring possession proceedings on default. Mr Hawkins has not established any basis upon which its rights to that possession could be resisted by the registered proprietors, let alone by him. 106Mr Hawkins relied on additional security provided to the Bank in 2005 by the Links group, not disclosed to Mr Birch and Ms Tarrant as involving unconscionability, even though he conceded that they had not thereby been disadvantaged. It was then covenanted that the Links loan would be paid out in 2006, as part of a transaction proposed to be entered with Babcock & Brown. That transaction, Mr Hawkins submitted, did not finally proceed, with the result that without their knowledge, Mr Birch and Ms Tarrant were disadvantaged. 107This submission cannot be accepted. That a transaction was contemplated between the Bank and Links, which might have been to their advantage, but which did not proceed, does not establish either disadvantage or unconscionability, so far as Mr Birch and Ms Tarrant are concerned. Their position remained entirely unchanged. 108Nor did the Bank's forbearance in calling up the loan, before the redevelopment approval was obtained, disadvantage Mr Birch and Ms Tarrant. That was the result of commercial decisions taken by the Bank, Links and Mr Birch and Ms Tarrant at various times. The result for them was that they continued to have use of the $5 million, interest free, which they were not called upon to repay until 2011, as they could have been under their guarantee, had the Bank not forborne as it did. 109That the global financial crisis intervened, with the result that the value of the property fell, is not to the point. That is not something for which the Bank can be held accountable. 110That the Bank later released certain individuals from guarantees which they had given, also takes the matter no further. The Bank was entitled to rely on the guarantees Mr Birch and Ms Tarrant had given, even if other guarantors had not been released. Further, as Mr Hawkins finally conceded, had Links repaid the borrowings to the Bank under this proposed arrangement, when the sale to Links did not proceed, it would also have been entitled to recover the $5 million deposit from Mr Birch and Ms Tarrant under the agreements. They would still have had to repay the $5 million. 111In cross-examination Ms McComb explained that the Bank had decided to pursue its rights under the mortgage, because it considered that course most likely to result in recovery of the outstanding loan. Mr Hawkins has not established that there is anything improper in that decision. It is for a mortgagee to determine how and against whom it will pursue the security it has in respect of a particular loan. As long ago discussed by Latham CJ in McLean v Discount Finance Ltd [1939] HCA 38; (1939) 64 CLR 312 at 328, for example: "A creditor to whom guarantees have been given may compel any surety to pay according to his contract. He is not bound to take any steps to distribute the burden among the sureties. Thus a surety who has guaranteed the whole of the debt may be compelled to pay the whole debt even though there are other sureties." 112Mr Hawkins also claimed that the mortgage was obtained from the registered proprietors, without the Bank making honest, complete and frank disclosure to them of the true nature of the entire financial relationship between it and the entire Links Group. Even if it were accepted that the Bank had such an obligation, which was not established, this could not establish the right to possession of the property which Mr Hawkins claims. 113Mr Hawkins' case otherwise rested in large part on what he claims were representations and misrepresentations made by various persons he had dealt with on behalf of the registered proprietors. Mr Hawkins gave no proper particulars in his defence of when and who made the representations and misrepresentations he asserted. Nor did his evidence descend to this detail. Both Mr Birch and Ms Tarrant were called. Their evidence also did not provide the necessary information about Mr Hawkins' claims. The documents in evidence, including the four agreements with Links also contradicted much of his evidence, as I have explained. 114Mr Hawkins also alleged that the Bank had not demanded repayment of the loan from the company which received the funds, Links Investco No 2. That was not established. To the contrary, relevant letters of demand are in evidence. 115Given their evidence that they did not read the documents before signing them, their evidence of their understanding of what they had agreed and that they would not have signed the documents if Mr Hawkins was not content with their terms, it is apparent that if they are to be believed, Mr Birch and Ms Tarrant's understanding can only have come from what Mr Hawkins told them. That he never read any of the documents which they and he entered, so as to be able to give them such an understanding, defies belief. Further, I am not satisfied that his evidence, or theirs, truly reflects what Mr Hawkins understood of the documents, or what he told them, before they were executed. That is because they did not act in accordance with such an understanding. 116Mr Birch and Ms Tarrant were legally represented before they entered the Standstill Deed in 2010, when they were seeking further time to refinance. It appears that it was Mr Hawkins who then gave the instructions. Had they truly had the understanding of the arrangement which they claim to have in these proceedings, it would undoubtedly have been an understanding which Mr Hawkins would have communicated to their solicitor. Such an understanding was never advanced in the negotiations with the Bank. The Standstill Deed was agreed in terms inconsistent with the existence of such an understanding. 117In any event, as discussed in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 at [45], it is well settled that: "It should not be overlooked that to sign a document known and intended to affect legal relations is an act which itself ordinarily conveys a representation to a reasonable reader of the document. The representation is that the person who signs either has read and approved the contents of the document or is willing to take the chance of being bound by those contents, as Latham CJ put it, whatever they might be. That representation is even stronger where the signature appears below a perfectly legible written request to read the document before signing it." 118Further, as there observed at [47] - [48]: [47] The importance which, for a very long time [See Whelpdale's Case [1572] EngR 473; (1604) 5 Co Rep 119a [77 ER 239]; Holdsworth, A History of English Law, 2nd ed (1937), vol 8 at 50-51.], the common law has assigned to the act of signing is not limited to contractual documents. Wilton v Farnworth was not a contract case. The passage from the judgment of Latham CJ quoted above is preceded by a general statement that, where a man signs a document knowing that it is a legal document relating to an interest in property, he is in general bound by the act of signature [[1948] HCA 20; (1948) 76 CLR 646 at 649.]. Legal instruments of various kinds take their efficacy from signature or execution. Such instruments are often signed by people who have not read and understood all their terms, but who are nevertheless committed to those terms by the act of signature or execution. It is that commitment which enables third parties to assume the legal efficacy of the instrument. To undermine that assumption would cause serious mischief. [48] In most common law jurisdictions, and throughout Australia, legislation has been enacted in recent years to confer on courts a capacity to ameliorate in individual cases hardship caused by the strict application of legal principle to contractual relations. As a result, there is no reason to depart from principle, and every reason to adhere to it, in cases where such legislation does not apply, or is not invoked [Photo Production Ltd v Securicor Transport Ltd [1980] UKHL 2; [1980] AC 827 at 843 per Lord Wilberforce, 851 per Lord Diplock; Darlington Futures Ltd v Delco Australia Pty Ltd [1986] HCA 82; (1986) 161 CLR 500 at 507-508; Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 at 62 [24]]." 119This is such a case. It was Mr Birch and Ms Tarrant who were conducting a very substantial commercial undertaking at the golf course, which had a turnover of millions of dollars. Mr Hawkins was only their employee. They were content to rely on Mr Hawkins negotiating various agreements on their behalf and did not themselves read the documents which they signed. In the circumstances, that is not a just basis upon which it could be concluded that they were not bound by the agreements which they so chose to enter, let alone that Mr Hawkins is now entitled to the possession which he claims. 120Furthermore, contrary to Mr Hawkins' submissions, neither Mr Birch nor Ms Tarrant were volunteers or guarantors of the kind discussed in Garcia v National Australia Bank Ltd [1998] HCA 48; (1988) 194 CLR 395. Nor have they been shown to have been the victims of undue influence or unconscionable conduct. They were never in a position of the kind considered in Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447, as Mr Hawkins claimed. It was they who had the undoubted benefit of the borrowings which they guaranteed, not someone else. 121Nor are the circumstances akin to those considered in Bank of Western Australia Ltd v Abdul [2012] VSC 222, another case of undue influence exercised by a husband over a wife, in circumstances where the wife who provided the guarantee in question was a volunteer. Mr Birch and Ms Tarrant's interests in the $5 million were not the result of 'accident of business structure' (see at [89]). Further, what Mr Hawkins seeks to rely on by way of analogy to what is discussed at [93] as to Mr Birch and Ms Tarrant's 'limited understanding of business and financial matters and their dependency upon him in financial matters and their lack of independent advice, when such advice was clearly called for', in my view is not available to him. 122There is no evidence that he was advantaged in the way that the husband clearly was in Abdul, or that they were disadvantaged. To the contrary, the evidence shows that the agreements which Mr Birch and Ms Tarrant entered were to their considerable commercial benefit. It was they who had the benefit of the $5 million borrowings since 2004, not someone else. It was they who used that money to refinance their existing borrowings and to repay existing debt, another reason why their circumstances could not be considered to have involved any unconscionability (see Collier v Morlend Finance Corporation (Victoria) Pty Ltd 1989 6 BPR 13,337). 123Further, here Mr Birch and Ms Tarrant are not being pursued. They have already agreed that the Bank is to have possession of the golf course. The plaintiffs accepted that if more than $5 million is realised on the sale, they will have the benefit of that balance, given the terms of the mortgage, subject to any other valid claims which others might have against them, as is suggested by certain caveats lodged over the property. 124All that is in issue in these proceedings is whether Mr Hawkins is entitled to the possession which he claims. The matters relied on do not establish a basis for him retaining such possession. 125That Mr Birch and Ms Tarrant have been unable to refinance when called upon to repay those borrowings, when the sale to Links did not proceed, does not establish either unconscionability or a basis upon which Mr Hawkins is entitled to retain possession of the golf course. That as events have unfolded, because of Ms Tarrant and Mr Hawkins' bankruptcies, that a dwelling located at the golf course has become their matrimonial home, does not alter that position. 126That the receivers did not pay proper regard to the interests of Mr Birch and Ms Tarrant has also not been established. Not only did the Bank have a registered mortgage over the golf course, it had made an agreement with them in 2010, by which they accepted that it was entitled to both possession of the property and judgment against them. That agreement was entered after the registered proprietors sought and failed to refinance the $5million borrowing, which they had had the unquestionable benefit of, since 2004, even though they were not themselves the borrower. 127It was not in issue that in 2004 it was in contemplation that this $5 million would be paid as a deposit, available to be used by Mr Birch and Ms Tarrant while the redevelopment approval was pursued. The agreements did not provide that they were entitled to retain the $5 million, if the sale did not proceed. To the contrary, they expressly provided for repayment. 128He also submitted that going forward, like in any other purchase and conveyancing matter, Mr Birch and Ms Tarrant were entitled to assume that once a deposit was paid, if there was no settlement in accordance with the agreed terms, that the deposit was forfeited. He conceded, however, that there was no provision in any of the agreements which had been entered, to that effect. Nor could he point to any provision which could be so construed. Rather, he was driven to submit that this flowed from the evidence of what was in the minds of Mr Birch and Ms Tarrant at the time that they entered into the agreements. 129Those submissions may simply not be accepted. There is no evidence that the parties to these agreements ever had such a term in contemplation. That Mr Birch and Ms Tarrant were not sophisticated people, who made assumptions as to what paying a deposit meant, which was contrary to the terms of the agreements which they entered, can take the matter no further. To so approach the construction of these agreements, would fly entirely in the face of the approach to construction of contracts discussed in Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24; (1982) 149 CLR 337 at [22]: "The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed. (at p352)" 130In the circumstances, the sale having not proceeded and Mr Birch and Ms Tarrant having regained possession of the golf course, as the result of steps which they took and Links not having repaid the Bank, that it took steps to recover the $5 million from Mr Birch and Ms Tarrant, who had the money was neither surprising nor inequitable, as they later accepted when they entered the Standstill Deed. 131Mr Hawkins submitted that it was also relevant that the registered proprietors no longer had in their hands the $5 million they had received from Links, because they had spent it in refinancing and paying off other debts. 132The evidence establishes that $5 million was used by the registered proprietors to refinance their existing borrowings and repay existing debts. Despite the obvious benefit which they obtained, Mr Hawkins still disputed that Ms Tarrant and Mr Birch had had the benefit of the $5 million advanced to them by Links. His submissions in this regard may not be accepted. 133It follows that even if Mr Hawkins submissions that in these proceedings the plaintiffs were obliged to consider Mr Birch and Ms Tarrant's position, when seeking possession as against him were accepted, no basis for refusing the order of possession which they sought against him was established. 134In the result I am satisfied that the orders sought by the plaintiffs must be made in the terms sought.

Orders 135For the reasons given, I order that:

1. Order that the plaintiffs are entitled to possession of the land situated at and known as XX XXXXXXX XXXXXXX, Maddens Plains, New South Wales, 2508, as contained in the following folio identifiers: (a) Lot 2 / DPXXXXXX; (b) Lot 3 / DPXXXXXX; (c) Lot 4 / DPXXXXXX; (d) Lot 1 / DPXXXXXX; and (e) Auto-Consol XXXX-XX, (together "the Property") as against the second defendant.
2. Order that the writ(s) of possession issued in respect of the Property pursuant to order dated 29 August 2012 be renewed and issued forthwith for execution.
3. Order that the second defendant pay the plaintiffs' costs of the proceedings (including reserved costs).
4. All exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 September 2013