The plaintiff, the Commonwealth Bank of Australia, seeks to enforce its entitlements under loan agreements, guarantees and mortgages against the first and second defendants, Gregory John McDonald and Jennifer Mary McDonald.
The third defendant, Greg McDonald Publishing & Numismatics Pty Ltd ("the company"), is in liquidation and played no part in the proceedings.
The matter was listed for hearing commencing 20 July 2020. Mr Hynes of Counsel appeared for the plaintiff. Mr and Mrs McDonald represented themselves.
The hearing was conducted over AVL. Mr McDonald spoke on behalf of both defendants. When he was being cross-examined, Mrs McDonald moved away from the table where they were seated in their home.
This judgment brings to an end a long saga during which Mr and Mrs McDonald have sought to retain possession of their home in circumstances in which they accept that they or the company have been in default under agreements entered into with the plaintiff.
The plaintiff relied on affidavits of Iain Malcolm Stevens dated 26 July 2019 and 13 July 2020, as well as an affidavit of service from Kerry George Hopkins dated 2 July 2020. Mr Stevens was cross-examined by Mr McDonald.
Despite non-compliance by Mr and Mrs McDonald with earlier orders of the Court in respect of service of evidence and earlier orders made by Davies J in respect of Mr McDonald's affidavit, I allowed Mr McDonald to rely on his affidavit of 12 May 2020 as the evidence in the defendants' case.
Mr Hynes appropriately admitted that he was able to deal with the matters raised in the affidavit (the affidavit had originally been served on the plaintiff back in May 2020). Mr Hynes provided a list of objections to Mr McDonald's affidavit. However, bearing in mind the content of the affidavit and the numerous objections which were similar in nature, I indicated that I would admit the affidavit and give such weight to the beliefs and opinions of Mr McDonald as was appropriate.
In his affidavit, Mr McDonald provides, in part, a narrative of events that have occurred and expresses views and opinions relating to the central point of his defence, which is that he believes that the plaintiff has treated him very unfairly.
Mr and Mrs McDonald filed defences to the statement of claim which they drafted themselves. There are a number of admissions made as well as various statements about the conduct of the plaintiff. It is difficult to discern the nature of the defence from those documents.
Mr McDonald provided a detailed opening in which he set out the case which he asserts should result in the plaintiff not obtaining the orders it seeks. Mr McDonald was also afforded an opportunity to cross-examine Mr Stevens and to make closing submissions.
Mr McDonald did apply for a vacation of the hearing date on the Friday before the Monday on which the hearing was due to start, on the basis that he required more time to finalise his evidence but I rejected that application.
I ultimately admitted his affidavit of 12 May 2020 and other than his desire for further time to investigate a suggestion made by a person working for the local Member of Parliament about the plaintiff's conduct, I understand that Mr McDonald presented all the evidence that he may have wished to adduce.
During the hearing, Mr McDonald accepted that there was default on the loan agreements when the plaintiff sought repayment. Further, he said in his closing submissions that he could not challenge the plaintiff's calculations as to the amount owing, being the amounts referred to in the statement of claim and then updated through the second affidavit of Mr Stevens.
[2]
Issues for determination
The proceedings are in the nature of possession proceedings in circumstances in which:
1. the plaintiff has adduced evidence of the agreements, mortgages and guarantee on which it relies so as to establish its causes of action;
2. the plaintiff had adduced evidence of service of demands on the defendants;
3. the plaintiff has adduced evidence of acts of default by the defendants;
4. the plaintiff has established the amount owing and that it has not been paid;
5. the defendants have made admissions in their defences. On the hearing they admit the authenticity of the documents, do not challenge the amount owing and, other than in respect of the Deed of Arrangement, do not suggest any irregularity or unfair conduct by the plaintiff at the time of entry into the agreements.
As pleaded in the statement of claim, the plaintiff made advances to the company pursuant to an overdraft facility. Mr and Mrs McDonald guaranteed that the company would pay the secured money (as defined) on demand. The company has breached the terms of the overdraft facility and the plaintiff has made demands on the company and Mr and Mrs McDonald.
Further, Mr and Mrs McDonald mortgaged their property to secure the amounts owing. The plaintiff served notices under s 57(2)(b) of the Real Property Act 1900 (NSW).
Similarly, the plaintiff made advances to Mr and Mrs McDonald under a home loan facility, which were secured by a consumer mortgage. Mr and Mrs McDonald have failed to pay amounts owing when due. Demands have again been served but there has been no compliance by Mr and Mrs McDonald.
Finally, the plaintiff relies on the Deed of Arrangement and pleads that Mr and Mrs McDonald are in default of the terms set out in the Deed. Again I do not apprehend that this is in dispute.
However, as must be apparent from the fact that the case has reached this far, the defendants have not previously admitted all of these matters and, further, the real issues in the case are those identified by Mr McDonald in his submissions and evidence on the hearing.
He provided a narrative as to how they came to be in their current parlous financial position and set out the reasons why he considered that the plaintiff had treated them unfairly and caused their current problems. Although not all of his submissions had an evidentiary basis, I have considered the issues raised by the defendants in the context of the plaintiff's claims.
I will endeavour to summarise the defendants' case and consider it in the context of whether the matters raised provide a proper basis for resisting the orders sought by the plaintiff
Mr and Mrs McDonald have been customers of the plaintiff since 1998. They own and live in their home at on Willow Way, Table Top in New South Wales. They are also shareholders of the company, which operated their business. Mr McDonald was the sole director and secretary of the company.
The company was placed into liquidation on 11 September 2019 on application of the Deputy Commissioner of Taxation. As such, the proceedings against the company are stayed by virtue of s 471B of the Corporations Act 2001 (Cth).
Commencing 12 November 1999, the plaintiff provided the company with an overdraft facility. The limit of the facility was increased over time up to the sum of $175,000.
Importantly, the overdraft facility was increased in 2008 pursuant to a letter of offer dated 25 June 2008. Mr and Mrs McDonald provided guarantees in respect of the amount owing under the overdraft facility, having previously guaranteed the original loans to the company.
It is not in dispute that the guarantees required Mr and Mrs McDonald to pay the moneys referred to as secured moneys on demand. Further, Mr and Mrs McDonald provided a second-ranking mortgage in respect of their property, being registered mortgage no. AB178323B, by way of security for the overdraft facility.
In December 2005, Mr and Mrs McDonald entered into a home loan with the plaintiff. The plaintiff advanced the sum of $260,000 to them on the security of a registered mortgage over the property, namely registered mortgage no. 9487220N.
Unfortunately, the defendants fell behind on their repayments. As I have said, Mr McDonald expressly admitted that there was default under the loans.
On 29 May 2015, the plaintiff and Mr and Mrs McDonald entered into a Deed of Arrangement (also titled a Deed of Forbearance). In the deed, Mr and Mrs McDonald acknowledged that they were indebted to the plaintiff under both the overdraft facility and the home loan and were in arrears in their payments under the home loan.
The deed was signed by Mr and Mrs McDonald as well as a representative of the plaintiff. Mr and Mrs McDonald also provided an independent solicitor's certificate from Robert Neil Meers in respect of the Deed of Arrangement. The certificate included a statement by Mr Meers that:
"1. [Mr and Mrs McDonald] understood the general nature and effect of the Deed and the obligations and risks involved in signing the Deed. It appeared to me that [they] did have such understanding;
2. [Mr and Mrs McDonald were] signing these documents freely, voluntarily and without pressure from CBA or any other person."
The Deed of Arrangement was the subject of extensive submissions by Mr McDonald. He says that he was coerced to enter into this agreement, although he does not dispute the essential recitals, including that as at 28 April 2015, the company was indebted to the plaintiff pursuant to the overdraft facility in the sum of $191,373.55 plus interest and that Mr and Mrs McDonald were indebted to the plaintiff pursuant to the home loan in the sum of $217,480.96 plus interest.
Nor does he dispute that on 1 May 2015, the plaintiff issued a demand in relation to their default. Indeed, he asserts that the number of demands issued was contrary to laws relating to service of documents.
As set out in the Deed of Arrangement, the plaintiff agreed to temporarily extend the limit of the overdraft account from $175,000 to $195,000, during what is described as the forbearance period, being from the date of the deed to the earlier of 31 October 2015 or a breach of any clause of the deed.
The point of the agreement was that the plaintiff would forbear from enforcing its rights under the home loan and overdraft facility during the forbearance period, unless there was any further default under the facilities. As set out in clause 5.2 of the agreement, should there be any further default and subject to the plaintiff serving further default notices, Mr and Mrs McDonald agreed to provide vacant possession of the property to the plaintiff.
Further, if Mr and Mrs McDonald failed to deliver possession of the property, the plaintiff would be entitled to commence proceedings and enter judgment against the company and Mr and Mrs McDonald for possession of the property and/or payment of any shortfall in the outstanding moneys.
Mr and Mrs McDonald were unable to comply with their obligations under the Deed of Arrangement. The company was ultimately placed into liquidation. Mr and Mrs McDonald did not vacate their property or offer it up to the plaintiff in accordance with the Deed of Arrangement. They have been unable to pay the amount outstanding under the overdraft facility and home loan facility.
On 8 November 2017, the plaintiff commenced these proceedings. As I have said, Mr and Mrs McDonald filed lengthy defences in which they made admissions but also raised various allegations about the conduct of the plaintiff.
Since the filing of the defences, there has been ongoing dispute between the parties. Mr and Mrs McDonald have not complied with many case management orders of the Court. Adopting a neutral view of their conduct, they have struggled to comply with Court orders and struggled to present their evidence in accordance with Court timetables.
Be that as it may, as I said to Mr McDonald during the hearing, what has happened in the past in terms of these proceedings will not determine the outcome of the proceedings. I dissuaded him from lengthy explanations as to earlier case management issues.
[3]
The defendants' case
The issues of substance that require determination by me are thus the issues raised by Mr and Mrs McDonald, the plaintiff having otherwise proved its case having regard to the terms of the documents, the affidavit evidence and the admissions by the defendants.
Again, as Mr and Mrs McDonald were representing themselves, I ensured that they were aware that the hearing was their opportunity to present their case, outline the issues as they saw them and make submissions, both in opening and closing, as to the nature of their defences and why the plaintiff is not entitled to the orders it seeks.
At the outset, I should say that their story is a sad tale of financial difficulties arising late in their working lives due to unforeseen events, in circumstances in which for many years prior thereto, they carried on a successful business and were able to manage their finances and pay amounts owing under their loans, as and when required.
As often happens with persons representing themselves, a number of the statements made in opening and closing submissions were not the subject of evidence, but to the extent that I refer to them in this judgment, I am only referring to them as background. I would not make findings about the conduct of the plaintiff unless it is the subject of evidence.
Mr McDonald appears to be a leader in the field of numismatics in Australia. He is a very proud author of the leading text in the area, "Pocket Guide to Australian Coins & Banknotes", now in its 23rd edition. (It might be viewed as the equivalent to Odgers's Uniform Evidence Law in Mr McDonald's particular discipline).
Whilst his business history and financial dealings are not the subject of evidence, he informs the Court that until such time as he became involved in litigation with a disgruntled client, he ran a successful and profitable business in coins and banknotes and published (and had printed in Australia) many editions of his book. He says that there were some financial difficulties for the company in the 1990s but he entered into an arrangement with his creditors and, because he was given time, he was able to repay all the money owing to the creditors.
He seeks to contrast that situation with the situation that he says he was forced into by the plaintiff.
He says that in 2005, he and his wife decided to transfer their business to the Bendigo Bank but, immediately on being informed of this, the manager of the plaintiff offered an overdraft of $150,000. Further, he was offered the plaintiff's wealth programme package, which included access to his own personal bank manager.
He says that with the extra finance facility and the assistance provided to him by the plaintiff's then-manager, the company went from having a turnover of $300,000-$400,000 to a turnover of $2.5 million in 2010.
In any event, in 2012 the company became embroiled in litigation pursued by a former customer. As I understand the nature of the litigation, an allegation was made that Mr McDonald had significantly underestimated the value of a rare coin, such that the customer made serious allegations about his conduct. Again, the documentation in relation to that litigation was not the subject of evidence by Mr McDonald but he informed the Court that the result was that the case was dismissed and there was an order for indemnity costs made in his favour in the sum of $258,000.
Mr McDonald says that the plaintiff in those proceedings committed suicide shortly after the judgment. No amount was ever recovered in respect of the costs.
I understand that this is the background to the financial difficulties that the company began to face. In particular, an amount required by Mr McDonald's solicitor, presumably for the purposes of further costs, caused the company to fall into default under the overdraft facility.
Further, Mr McDonald says that a week after the hearing started, he suffered a heart attack. He wrote to the plaintiff on 1 May 2014, informing it of his stress and his medical condition and saying that he needed more time.
He links everything that has happened thereafter, in terms of the financial difficulties that the defendants have experienced, to the plaintiff's refusal to give him more time.
He says that the facilities were then placed in the hands of the plaintiff's credit manager, so that he was no longer dealing with his personal bank manager.
By the end of that year, they were required to pay the whole amount owing under the overdraft facility. He says that his financial advisor wrote to the plaintiff on 6 June 2014 regarding his difficulties but the plaintiff refused all approaches.
He says that despite 22 years of paying tax and regularly selling 14,000 copies of the editions of his book, he was suddenly cast into the position of having to pay moneys that he did not have without being afforded proper time to do so.
In particular, he says that he was forced to deal with the solicitors for the plaintiff, seemingly being required to pay their costs, on top of the amount owing under the facilities.
He says that he was coerced into signing the Deed of Arrangement and that he signed it under duress.
On receipt of the original draft from the solicitors for the plaintiff, he refused to sign, asking that certain terms be deleted. Although the plaintiff agreed to delete the terms, he points to this conduct as in some way forcing him into a position that he did not want to be in.
He emphasises also that the plaintiff refused to respond properly or at all to four offers made by the defendants between 2014 and 2017 by way of an attempt to resolve the issues. I should say that the plaintiff disputes that it failed to respond to the offers but points out that Mr and Mrs McDonald never offered to pay the full amount outstanding.
In any event, Mr McDonald complains that as part of the process of trying to satisfy the plaintiff during this period, he was forced to compile voluminous material and given no adequate time to do so. Mr McDonald says that as he was forced to deal with the plaintiff's demands, he was unable to complete the 22nd edition of his book on time, which caused considerable angst amongst his customers.
Of more significance, Mr McDonald says that the plaintiff closed down his credit facilities, including his Mastercard and Visa card. As he operated his business through those credit facilities and credit card, he says that he was suddenly placed in the position that his customers could not deal with him. Indeed, he had to enter into an arrangement with the printer of the 23rd edition of his book whereby customers paid money directly to the printer to obtain the book. In that way, the printer agreed to print the book as payment would be coming directly from the customers.
The gravamen of Mr McDonald's complaint on this point is that he could only obtain money to pay the amounts outstanding under the facilities through his business. As the plaintiff shut down his credit facilities, it effectively shut down his means of operating his business, thereby leaving him with no opportunity to pay the amounts outstanding. He fell into default again and the plaintiff then acted, ultimately commencing these proceedings.
Further, Mr McDonald says that the plaintiff's demands upon him, in terms of provision of documentation in dealing with this litigation, have been such that he has been unable to complete a new edition of his book. He also complains that at some stage, the plaintiff required him to prepare lengthy documentation in support of his position when the plaintiff knew that his accountant was in China. He needed to find a new accountant on short notice and was required to pay significant fees to that new accountant.
Further, again, according to Mr McDonald, the plaintiff's analysis of his financial position was incorrect. Amongst other things, it included in his financial position an amount of $53,000 said to be a debt when in fact it was not. He asserts that the plaintiff dealt with him on a false understanding of his accounts.
Mr McDonald makes various allegations about the plaintiff in this regard. However, as I said to him, whilst I would accept his background narrative, he should not make allegations about criminal or fraudulent conduct without a proper foundation and evidence to support such allegations. There is none.
As Mr McDonald said during the hearing:
1. he has not published an edition of his book since 2017;
2. he feels he has lost all credibility in his industry;
3. if they are removed from their home, they do not have enough money even to buy a caravan; and
4. he attributes his difficult position to the plaintiff in that it did not support him by giving him more time and it shut down his credit facilities at a time when he needed them to generate his income.
I give due allowance for the fact that Mr and Mrs McDonald are representing themselves and have limited understanding of legal rights and remedies. I apprehend that their defence to the plaintiff's claim is that:
1. the plaintiff has treated them very unfairly;
2. the plaintiff did not allow them sufficient time to organise their affairs and generate income to pay the amounts outstanding;
3. the plaintiff became aware of Mr McDonald's poor health, that is, that he suffered a heart attack, and deliberately chose to protect its own position by shutting down the credit facilities because it was concerned at the state of Mr McDonald's health and the prospect of financial difficulties emerging; and
4. he signed the Deed of Arrangement under duress, having been coerced into doing so;
5. the plaintiff has failed to consider or respond properly to their attempts to resolve the issues.
This is Mr and Mrs McDonald's narrative. It is what they believe.
Plainly, Mr McDonald feels that they were not supported by the plaintiff, despite their long history with the plaintiff. Further, Mr McDonald is correct in asserting that he and the company were subject to high interest rates as part of the overdraft facility. Yet, perhaps contrary to Mr McDonald's belief as to the conduct of the plaintiff, he also referred to the plaintiff offering to combine the overdraft facility and the home loan at the home loan rates (significantly lower), subject to the provision of further documentation. Mr McDonald's complaint is that he was not afforded enough opportunity to collate that information and when he did not provide it in time, the loans were not combined.
I can only say that on one view, the plaintiff's offer to combine the loans and reduce the interest rates was an attempt by the plaintiff to assist and reduce the amount payable by the company. It is unfortunate that the parties could not come to some further accommodation for that to occur.
Further, as submitted by Mr Hynes on behalf of the plaintiff, the Deed of Arrangement represented an attempt by the plaintiff to work with the company and Mr and Mrs McDonald to give them more time. It is not apparent on the face of the document how entry into that arrangement made the defendants' position worse. Mr McDonald may have felt coerced to enter into the Deed of Arrangement but he did provide a solicitor's certificate to the contrary and the aim of the arrangement was to allow the defendants additional time during which the plaintiff agreed not to take enforcement proceedings.
Whatever suspicions Mr and Mrs McDonald might have had about the plaintiff's motives, it is not apparent on the evidence that this was anything other than an attempt to "work out" the problem (which is a common approach of banks in these situations).
It is an unfortunate consequence of such arrangements that the debtor is required to pay the bank's legal fees in these circumstances (of which Mr McDonald also complains) but, again, Mr McDonald agreed to this arrangement.
In answer to all of the defendants' complaints, the plaintiff relies on the principles set out in Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161; [1972] HCA 74. In Inglis, the plaintiffs sought damages against the bank for breaches of contract, defamation, fraud and conspiracy. They pursued a claim for damages on the basis that any amount payable to them by way of damages would more than counterbalance the amount said to be owing by them to the bank under their loan agreements.
Similarly to this matter, the plaintiffs did not claim that they had no indebtedness to the bank or that the indebtedness had been discharged by payment. Rather, they made various allegations about the conduct of the bank which they said gave rise to an entitlement to damages. They sought an order restraining the bank from seeking possession under the mortgage. The problem was identified as follows:
"The problem before me is whether, in the circumstances and having regard to the nature of the action that has been brought and the claims made in it, the defendant should be prevented, in aid of the plaintiffs' claims, from exercising any rights at all under the mortgage instrument, until those claims have all been finally determined. In my opinion the principles on which the Court has always acted do not permit the Court to intervene because of the existence of those claims, and I am of the opinion that I should not grant the application." [1]
Critically, the plaintiff submits that nothing raised by Mr and Mrs McDonald could be said to give rise to a reason to impugn or impeach the loan agreements, guarantees and mortgages that the plaintiff seeks to enforce or otherwise challenge the monetary liability that is secured by them. I agree with that submission.
Even if I accept the narrative put forward by Mr and Mrs McDonald, they would not have a defence to the relief sought in the statement of claim. This is because the contractual obligations of Mr and Mrs McDonald arise under the agreements that they or the company entered into, being the loan agreements, the mortgages and the guarantees.
The plaintiff is entitled under the terms of the loan agreements, mortgages and guarantees to the orders it seeks. Mr and Mrs McDonald raise no issue as to setting aside those agreements or as to the authenticity of those agreements or even as to the amounts now outstanding. Although Mr McDonald feels that he was coerced into entering into the Deed of Arrangement, the evidence does not support that assertion.
Whatever their suspicions or beliefs they might have, Mr and Mrs McDonald have not adduced evidence that would support any finding that:
1. on learning of Mr McDonald's heart attack, the plaintiff decided to take a hard line because he was suddenly assessed as a greater risk;
2. Mr McDonald was coerced into signing the Deed of Arrangement or signed it under duress (as those terms would be understood for the purposes of any relief caused by duress); or
3. the plaintiff, in some way, deliberately closed down the company's credit facilities with the knowledge that it would prevent the company from running its business and earning an income.
Mr McDonald cross-examined Mr Stevens. He asked a number of questions about why the plaintiff conducted itself in certain ways, including why it did not allow him more time to provide information or why the plaintiff put deadlines on proposals. Nothing emerged from the cross-examination of Mr Stevens that provided any basis for a defence.
It must be said that Mr and Mrs McDonald have been fighting to keep their home for the past six years. Whatever might be said about the terms of their defence and their conduct and delays subsequent to the commencement of these proceedings in 2017, the arguments raised and the evidence presented on the hearing of this matter do not provide any defence to the relief claimed by the plaintiff in the statement of claim.
During the period that Mr and Mrs McDonald have been resisting the orders sought in the statement of claim, the amount of the debt has continued to increase. I am satisfied, having regard to the evidence of Mr Stevens, that the amount owing has been properly calculated.
[4]
Conclusion
The plaintiff is entitled to possession of the land and an order granting leave to issue a writ of possession in respect of the land. Further, the plaintiff is entitled to judgment against Mr and Mrs McDonald in respect of the amounts owing under the overdraft facility and the complete home loan facility.
As I have already noted, Mr McDonald said he could not dispute the amount claimed. The amount claimed is established through the affidavit of Mr Stevens and is set out in the proposed Short Minutes of Order provided by the plaintiff with the plaintiff's closing submissions.
Bringing interest up to the date of judgment, I calculate the amounts owing as follows:
1. The amount owing under the overdraft facility as at 13 July 2020 was $355,355.72. Interest on that amount from 14 July 2020 until the date of judgment, being 31 July 2020, is $2,365.74. The total amount owing as at 31 July 2020 is thus $357,721.46.
2. The amount owing under the home loan facility as at 13 July 2020 was $251,191.43. Interest on that sum from 14 July 2020 to 31 July 2020 is $475.92. The amount owing under the home loan facility as at 31 July 2020 is thus $251,667.35.
The plaintiff is thus entitled to judgment against Mr and Mrs McDonald for the total of those amounts, being $609,388.81.
The plaintiff seeks a further order, being interest on that amount from the date of judgment up to the date of payment in accordance with s 101 of the Civil Procedure Act 2005 (NSW). I do not consider that I should make that order.
As set out in s 101(1), unless the Court orders otherwise, interest is payable on so much of the amount of a judgment as is from time to time unpaid. However, as set out in s 101(3), despite sub-section (1) interest is not payable on the amount of a judgment if the amount is paid in full within 28 days after the date on which the judgment takes effect, unless the Court orders to the contrary.
I do not propose to make an order contrary to s 101(3). Further, in the absence of any contrary order, interest accrues automatically in accordance with s 101.
[5]
Costs
The plaintiff also seeks an order for costs on an indemnity basis.
Clause 12 of the Usual Terms and Conditions for Commercial Lending Facilities applying to the overdraft facility requires the borrower to pay to the bank the fees and charges referred to in clause 12 as soon as they are due and payable. Those fees and charges include legal costs (both solicitor and client and party and party) in connection with the exercise or enforcement of any right, power, claim or remedy of any kind arising out of the contract or the security.
Similarly, clause 9.4 of the Usual Terms and Conditions for Consumer Mortgage Lending applying to the home loan requires the borrower to pay any expenses reasonably incurred by the plaintiff in enforcing rights under the contract or security.
I accept that the order for costs should reflect the contractual right arising under the agreements. [2] I adopt the analysis undertaken by Nicholas J in Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service (No 3). [3]
The Court should give effect to the agreement between the parties.
Mr and Mrs McDonald agreed to pay the plaintiff's costs of any action necessary to enforce rights under the agreements. Those costs should be the costs actually incurred, subject to the questions of reasonableness as might be determined by a costs assessor.
I am not determining the amount payable by Mr and Mrs McDonald, but merely making an order for indemnity costs. The actual amount payable, if not agreed, will be determined in accordance with the appropriate assessment procedures.
[6]
Orders
In the circumstances, I make the following orders as against the first and second defendants:
1. Judgment for possession of the whole of the land contained in Certificate of Title Folio Identifier 14/825754, being land situated at and known as 37 Willow Way, Table Top, in the State of New South Wales.
2. Judgment in the sum of $609,388.81.
3. The Plaintiff has leave to issue a writ of possession in respect of the property.
4. The first and second defendants to pay the plaintiff's costs on an indemnity basis.
[7]
Endnotes
Inglis at 167-168.
Gomba Holdings (UK) Ltd v Minories Finance Ltd (No 2) [1993] Ch 171 at 194.
[2010] NSWSC 1139 at [23]-[28].
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Decision last updated: 31 July 2020