Campbell v Illawarra Golf Club Pty Ltd

Judgment (10 paragraphs)

[1]

Minter Ellison (Plaintiffs) Mr D Hawkins, unrepresented (Second Defendant) File Number(s): 2011/382861 Publication restriction: None

[2]

Judgment 1The plaintiffs, Mr Campbell and Mr Strawbridge, were appointed the receivers of certain land situated at Maddens Plains where the Illawarra Golf Course is located, under the terms of a first registered mortgage which the National Australia Bank Pty Limited holds over that property. They seek orders for possession of that land, the registered proprietors of which are Mr Birch and Ms Tarrant. They are not parties to the proceedings. Only the second defendant, Mr Hawkins, now opposes the possession sought. 2Mr Hawkins is Ms Tarrant's husband. He now resides in a dwelling located at the golf course with Ms Tarrant and his family. They moved there after an order for possession of their former residence at Newport was made in favour of the Commonwealth Bank in March 2012. When the hearing commenced in July 2013, both Mr Hawkins and Ms Tarrant were bankrupt. 3Notwithstanding the plaintiffs' demand that he vacate the property, Mr Hawkins still remains in occupation. He claims that he is entitled to retain possession of the property, given his employment by the registered proprietors, to manage the golf course. How such employment could give him the right which he claimed, was never explained. 4The proceedings were commenced in 2011 against a number of defendants. The first defendant, the Illawarra Golf Club Pty Ltd, formerly operated the golf club business conducted at the golf course. It is now in liquidation and the proceedings against it have been resolved, Garling J having made an order of possession against it, on 8 August 2012. 5The proceedings have also been resolved with the third and fourth defendants, Mr Richard Doney and Mr Stephen Doney, who were also sued by the receivers as occupants. Orders for possession were made against them, on 29 August 2012. 6In the result, in these proceedings the only question remaining to be determined is whether the receivers have established a basis for an order of possession being made in their favour against Mr Hawkins, the only active defendant. To resist that order, he raises various defences. To understand how the case came to be argued as it did at the hearing, it is convenient to refer to one of the interlocutory judgments given by Garling J, while case managing the proceedings. 7In Campbell v Illawarra Golf Club Pty Ltd (In Liquidation) [2012] NSWSC 1252, Garling J outlined the background to the proceedings, which it is convenient to refer to. His Honour observed at [12] - [32]: "Factual background 12 The Property, which was located in the local government area for which the Wollongong City Council had responsibility, was zoned for use as a "golf resort" under the Wollongong Local Environmental Plan No.38. 13 The land upon which Illawarra Golf Club operated included freehold land which was owned by the owners and also Crown land, over which the Illawarra Golf Club had a licence for use. 14 Prior to 2004, a proposal was formulated for the development of the Illawarra Golf Club site into a new golf resort. In general terms, what was proposed was that there would be a nine hole golf course, a clubhouse with a golf shop, restaurant, bar and other facilities, short term accommodation consisting of about 100 rooms, 200 homes for permanent residents and 100 retirement dwellings or serviced apartments. It was anticipated that the golf course would occupy 40-45 hectares and the 400 unit residential complex would occupy about 10 hectares. 15 In order to enable this development to occur, the owners entered into a series of agreements in August 2004. 16 The first agreement was entitled "Development Application Agreement". In this agreement the owners were one of the parties, two companies associated with each of the owners, Snad Pty Limited, and C B Birch Pty Limited were also parties, which were described in that agreement as the "promoters", and Links Illawarra Developments Pty Limited, a Victorian company which it was said had "established credentials in seeking and obtaining development approval for mixed use golf course and residential developments". 17 Links Illawarra Developments Pty Ltd was a company which formed part of a corporate group which can conveniently be called the Links Living Group. Other companies within the Links Living Group had separate roles to play in some of the steps being taken in the development project. All companies in the Links Living Group were in the same interest in this project. It is convenient, unless absolutely necessary, to refer to the Links Living Group, by that name, rather than the names of the individual companies. 18 The background to that Development Application Agreement was described in the following terms: "1.1 The owners are the owners of the property known as Illawarra Golf Club and located at the west side of Princes Highway, Helensburgh, New South Wales (Property). 1.2 Links has established credentials in seeking and obtaining development approval for mixed use golf course and residential developments. 1.3 The promoters have local contacts that will assist in seeking any development approval for the property. 1.4 An entity related to Links has an option to purchase the property and Links has been engaged to provide services to that entity in relation to the property. 1.5 Links wishes to seek development approval for a mixed use golf course and residential developments at the property (Application). 1.6 The promoters have agreed to permit Links to seek approval of the application generally in accordance with the terms of this agreement." 19 The Agreement went on to set out the terms upon which the development application would be lodged, and development consent would be sought. 20 Some other relevant clauses of the Agreement are as follows: 2.2 The owners and promoters have agreed to permit and support Links in seeking approval of the application in consideration for Links agreeing to pay a success fee to the promoters if the application is approved. 2.3 The parties agree to work together to obtain approval of the application in accordance with the provisions of this agreement. 2.4 Links will: 2.4.1 Lodge a development application with the relevant statutory body to seek approval to develop the property in a way determined by Links in its discretion following consultation with the promoters ...; 2.4.2 Report regularly to the promoters about the progress of the application and take into account reasonable suggestions made by the promoters in relation to the application; and 2.4.3 Make all final decisions in relation to the application. ... 2.6 The promoters and the owners agree to assist Links in pursuing the application by: 2.6.1 Executing any document that Links believes necessary or desirable in connection with the application; .... 2.6.3 Will not object to the application whether directly or indirectly; .... 2.6.5 Permitting Links to make decisions it deems necessary in relation to the prosecution of the application ...; and 2.6.6 Abiding by any decision made by Links in relation to the application." 21 The parties agreed to share equally in the cost of seeking and/or obtaining the approval for the application. There was a sunset date specified of two years from the commencement date of the agreement. However, Links Living was the only party entitled to elect to terminate the agreement. Clause 6.1 read: "If the application is not approved to Links' satisfaction within 2 years of the date of this agreement, then Links may elect to terminate this agreement by notice in writing to the owners and the promoters." 22 Clause 8 of the Agreement is of importance. It dealt with the relationship between the contracting parties. It provided that nothing in the Agreement should be read or construed as placing the parties " ... in the relationship of a partnership or of a principal and agent". It was expressly agreed between the contracting parties that each of them were independent contracting parties and that, otherwise than as specifically provided in the agreement, "8.1.3 ... neither of the parties shall have any authority or power for or on behalf of the other party to enter into any contracts, to pledge any credit, to incur any liabilities, to assume any obligations or to make any warranties or representations." 23 At the same time, another document entitled a "Put and Call Option Deed" was entered into between Links Illawarra Holdings Pty Limited and Ms Tarrant and Mr Birch by which, in short, upon all of the terms and conditions set out in the document, the owners granted Links Living an option to acquire the property. 24 As well, the owners who were called the grantors, were given a put option whereby they might require Links Living to purchase the property. 25 The third agreement entered into in August 2004, was a "Loan Agreement" whereby a company, in the Links Living Group, agreed to make available a financial facility to the owners by making advances to them, up to a limit of $5 million. 26 The final agreement in the suite of agreements in August 2004, was a "Sale of Business Agreement", whereby the owners agreed to sell to Links Living, the business known as the "Illawarra Golf Club", including its goodwill, fixed assets, trading stock, leases, business records and the like. 27 Mr Hawkins is a party to this agreement, but not to any of the others. He is a party to this agreement because, so it appears from the Recitals, he had recommended to the owners who were the vendors "... that they enter into this agreement in consideration for a fee, and the agreement records that he has agreed to be a party to the agreement ... in order to be bound with the vendor by the warranties and in order to provide certain guarantees and indemnities in favour of the purchaser in relation to the obligations of the vendor under this agreement". 28 The warranties to which reference was made are set out extensively in clause 12. There is no need to identify the terms of them. In clause 13, the guarantees provided by Mr Hawkins are set out. 29 In general, Mr Hawkins guaranteed to Links Illawarra Holdings Pty Limited: "13.1 ... the due payment of all monies covenanted or agreed to be paid by the vendors under this agreement and the due performance, observance and fulfilment by the vendors of all covenants and obligations contained in this agreement and on the part of the vendors to be performed, observed and fulfilled". 30 Attempting to summarise these four agreements would not be to do each of them justice, but broadly speaking, it would appear that Ms Tarrant and Mr Birch, as the owners of the land, were engaging through these agreements with Links Illawarra Developments Pty Ltd or other companies in the Links Living Group, with a view to obtaining a development consent allowing the development and expansion of the Illawarra Golf Club. 31 Companies associated with the owners were to obtain a benefit in the event of the development consent being granted. In the event that all other relevant conditions were fulfilled, and the Sale of Business Agreement was to proceed to completion, Mr Hawkins, having been paid a fee by the owners, was to guarantee the performance of those obligations. Money for the project was to be provided by the Links Living Group, in the first instance by a loan to the owners, and it was a matter for them and the relevant Links Living Group company to share jointly the costs of obtaining a development consent. 32 The Links Living Group had the running and control of the application for consent; it had the authority to make all decisions, but it was obliged to consult with the owners. The owners appointed Mr Hawkins as their representative to deal with the Links Living Group and it proceeded with obtaining development consent." 8At [86] - [96] of his judgment Garling J dealt with the issues arising to be determined in these proceedings, observing that: "86 Mr Hawkins claims to be entitled to remain in occupation of the property by reason of an agreement which he has reached with owners to be employed as the golf course superintendent. It is not clear whether this contract is with the owner themselves, or if it was with Illawarra Golf Club Pty Ltd, which is now in liquidation. However, for present purposes, since the Golf Club is in liquidation, I will assume it is the former of these two alternatives. 87 Mr Hawkins in his defence also raises the following matters, and identifies them as being in dispute: (a) whether the receivers were properly appointed; (b) whether the receivers have any entitlement to possession; (c) whether such claims as he has are superior to those of the receiver; and (d) whether the agreement by which the receivers have taken possession of the property and business was unlawful. 88 The mortgage under which the Receivers are appointed, which was entered into by the registered proprietors, gives the NAB the following rights: "1. On demand in writing to the Mortgagor by the Bank the Mortgagor will pay the amount owing provided that where it is agreed in writing between the Mortgagor and the Bank that the payment of the amount owing or any part thereof should be made other than on demand at any time (the Mortgagor not having defaulted or being in default) the Bank agrees not to make for so much of the amount owing as is affected by such agreement except in accordance with that agreement or this Mortgage. 2. The Mortgagor agrees and acknowledges that: (a) this Mortgage is not executed in consequence of any representation, promise or statement by the Bank, or anyone on behalf of the Bank, other than any representation, promise or statement expressly or by implication contained in this Mortgage, and that this Mortgage is not entered into upon or subject to any condition not herein expressed or implied, and (b) no person has any authority to add to, contradict or vary the terms of this Mortgage, or to waive any of its provisions, otherwise than by an instrument executed by the Bank by its duly appointed Attorney. 3. The Mortgagor agrees with the Bank that the provisions in the memorandum filed in the Land Titles Office as Number 7652469 ('the Memorandum') are incorporated in this Mortgage. A reference to 'this Mortgage' in the cover sheet, this Schedule, the Memorandum or any annexure to this Mortgage is a reference to the Mortgage constituted by the cover sheet, this Schedule, the Memorandum and each of those annexure and the Mortgagor acknowledges that the Mortgagor has received and read a copy of this Mortgage prior to executing it." 89 A question remains as to who owns the golf course business, and hence would need to employ Mr Hawkins as the golf course superintendent. It is to be recalled that the Illawarra Golf Club Pty Ltd, which is now in liquidation, was the company which ran the golf course business. It, subject to the terms of the agreement which I have earlier outlined, sold the business to one of the companies in the Links Living Group. 90 Nevertheless, it was entitled to continue to conduct the business in accordance with the terms of that agreement. However, the fact is that the business being conducted by that company is now in liquidation. 91 The evidence does not reveal by whom the business, if it continues to exist, is being conducted. The evidence does not reveal what the terms of the contract between Mr Hawkins and the owners are. It does not reveal whether that is in writing or oral, nor what the terms of it are. 92 I would be prepared to infer that the terms of a contract for the retainer of Mr Hawkins as the superintendent of the golf course, may extend to supervising the conduct of the golf played on the course, supervising the care and maintenance of the course, overseeing and supervising the business operation such as the employment, or retainer, of a golf professional, and the provision of services to members of the public who wish to play golf. Beyond that, in the absence of any information, I would not be prepared to infer that there are any additional duties carried out by the golf course superintendent. 93 There is no suggestion in the evidence, nor would I be prepared to infer in the absence of any such evidence, that the superintendent is entitled to reside on the property, nor that the golf course superintendent is anything other than an employee of either the Illawarra Golf Club Pty Limited, or else, of the owners. 94 Whether or not the owners entered into any loans with respect to the property, and whether or not the owners, represented by Mr Hawkins, attempted to obtain the development consent for the property, and perhaps thereby revealed the financial position of the golf course operations, do not seem to me to relate to, or tell upon, in any way, the fact of the relationship between the owners and Mr Hawkins as the golf course superintendent, nor any of the terms of his retainer as such. 95 Nor, so far as I can tell, is Mr Hawkins' financial position some years ago and at least prior to 2009, so far as his assets and liabilities are concerned, or his then income and expenditure are concerned, of any relevance whatsoever to his allegedly current entitlement to remain in occupation of the property. 96 The issue as to whether the Receivers were properly appointed will be determined by the terms of the mortgage and the events surrounding that appointment which have occurred. The second issue is what is the right or entitlement of Mr Hawkins to possession. This depends upon an analysis of the contract or agreement under which he is employed or retained as the golf course superintendent, his functions and authority, and whether, as a matter of law, those functions and authorities are overridden by the claim by the NAB through its Receivers to possession." 9The real nub of the case which Mr Hawkins finally pressed at the hearing was that he, Mr Birch and Ms Tarrant were all the victims of an ongoing conspiracy. In the result, even though in 2004 Mr Birch and Ms Tarrant had given the Bank a mortgage over the property and guaranteed the repayment of $5 million borrowed from the Bank by one of the Links companies, which had not been repaid when it fell due and though they had also agreed with the Bank in 2010, that it was entitled to possession of the property, the order of possession which the plaintiffs sought in these proceedings would not be made. 10Mr Hawkins also claimed that contrary to the documents which evidenced the various arrangements entered in respect of the redevelopment of the golf course and the $5 million borrowings, what had really been agreed was that if the sale of the golf course to Links did not proceed, Mr Birch and Ms Tarrant would be entitled to retain the $5million which had been advanced to them by Links, while the redevelopment was pursued. Those borrowings were to be repaid by Links, not them. Their obligations to the Bank had come to an end in 2006, notwithstanding the terms of various agreements which they had signed, which were to contrary effect. 11Had those been the terms agreed, this would have plainly been quite a remarkable deal for Mr Birch and Ms Tarrant. Not only would they be entitled to have the use of $5 million from 2004, interest free, they would have been entitled to retain that entire sum, as well as the property, if the sale did not proceed and the borrowings were not repaid by Links. 12While Mr Hawkins, Mr Birch and Ms Tarrant all gave evidence that they had such an understanding, I am satisfied that significant aspects of their evidence smacked of recent invention. Neither their prior conduct, nor any documents in evidence, established that such a deal was ever contemplated, let alone made. Nor did they reveal in their evidence how they came to have such an understanding of the deal. Further, that such a deal, even if it had been made, would now entitle Mr Hawkins to the possession of the golf course which he seeks to retain, was not established. 13It is also relevant to note that on 15 February 2013, Garling J dismissed a motion filed by Mr Birch, in which he sought orders as to the validity of the Bank's mortgage (see Campbell v Illawarra Golf Club Pty Ltd (Supreme Court of NSW, 15 February 2013, unreported)). 14His Honour considered that the motion required the joinder of Mr Birch, Ms Tarrant and the Bank as parties to the proceedings. He took the view that the most efficient way of dealing with the issues sought to be raised by Mr Birch, if either he or Ms Tarrant wished to attack the mortgage, was for them to bring proceedings against the Bank, observing that: "The issues, once a defence is filed, would then be apparent and the Court, depending on whether that process is done in a timely manner, would then be in a position to delay with the question of whether there are any common issues of fact or law between the proceedings which would suggest that the current proceedings and the proposed proceedings ought to be heard and determined together." 15Neither Mr Birch nor Ms Tarrant have brought such proceedings, although when giving his evidence, Mr Birch said that he intended to bring proceedings once these proceedings were concluded. 16It is difficult to see that Ms Tarrant could bring such proceedings, given her bankruptcy. As discussed by Johnson J in National Australia Bank Limited v Strik [2009] NSWSC 184 at [9]: "I am satisfied that the Defendant has no more than a bare legal interest in the Wollongong property which he holds for the benefit of the Official Trustee, and that he has no interest in the proceedings brought against him for possession of the property and has no standing to be heard in defence of the Plaintiff's claim: Farrow Mortgage Services Pty Ltd v Winfield (1992) 2 QdR 282 at 285; Bendigo Bank Ltd v Demaria [2001] VSC 218 at [18]. Mr White has drawn the Court's attention, appropriately, to the decision of Dodds-Streeton J of the Victorian Supreme Court in Re-Engine Pty Ltd v Fergusson (2007) 209 FLR 1 at 9-12 [50-[68], where reference was made to a number of decisions, including Farrow Mortgage Services Pty Ltd v Winfield and Bendigo Bank Ltd v Demaria. Dodds-Streeton J observed at 12 [67]-[68] that, although the authorities indicate that a bankrupt does not have locus standi or an entitlement to be heard, the Court has a discretion to permit a person to give evidence in answer to allegations of personal misconduct and that, in the unusual circumstances of that case, it would promote the due administration of justice to permit the person to be heard. Nothing said by her Honour undermines the principle concerning standing expressed in Farrow Mortgage Services Pty Ltd v Winfield and Bendigo Bank Ltd v Demaria." 17While Mr Hawkins was also a bankrupt, the Bank accepted that these proceedings were akin to eviction proceedings and that in the circumstances, he was entitled to be heard on his defence. How he had standing to make various of the claims he advanced was difficult to see. The plaintiffs did not resist his case on that basis, however, and so it is unnecessary to resolve that question. 18For the reasons which follow, I am satisfied, however, that the plaintiffs have established that an order should be made in their favour in the terms sought.

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.

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.

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