Hargraves Secured Investments Limited v Ciavarella

Terms of the loan agreement

1. Clause 6 of the Loan Agreement of 29 October 2013 provided that the principal and all outstanding interest would be repaid after 90 days, upon 30 days' written notice from the plaintiff. However if no notice should be given the whole principal and any outstanding interest would be repayable one year from the date of the Agreement. In the events which occurred, 5 November 2014 was the due date for repayment of the loan and any remaining interest.
2. By clause 3 the interest rate was 17.25%, reducible to 13.25% for timely payment and subject to observance of all of the borrower's covenants. A few days worth of interest was payable on 5 November 2013 and then $15,127.08 on the 5th of each subsequent month up to April 2014. On each of 5 May and 5 June 2014 an instalment of $30,000 was payable, being partly interest and, in each case, a reduction of principal of slightly under $15,000. The interest instalment for 5 July and for the 5th of each month thereafter up to November 2014 was $14,796.83.

Sale of 300 ML of water rights

1. In April 2014 Darren Ciavarella commenced to sow winter cereal crops on Midgee, on Farm 1863, on Farm 557 and on another parcel of ground which he occupied under leasehold. He had insufficient cash flow to pay existing creditors and to cover foreseeable expenses including interest on the loan from the plaintiff, the cost of establishing the winter crops and, in due course, the cost of cultivating and irrigating them. He therefore proposed to the plaintiff that the majority of his father's water access rights (300 ML out of a total of 321 ML), which had been charged in favour of the plaintiff, should be sold.
2. This proposal was first made in a letter from Darren Ciavarella to the plaintiff of 26 April 2014 which included the following: "We did discuss [prior to Easter] my proposal to sell 300 megalitres water.. permanent sale. This would allow me the ability to pay your monthly interest until the end October in advance and have enough cash flow to get the winter cropping program in on time. I propose that once the 6 months interest is paid to you from the sale of the water, the balance to be retained by me. (I have commenced the winter program but I am finding it extremely difficult to manage without working capital to proceed …). If this proposal is accepted, I would appreciate some thought being given to a reduced monthly interest rate to 10% or lower. I would then request that consideration be given to the deferral of the November and December interest payments till the crop production payments are made - end December 2014. … I am ready to plant the 2014 winter crop but need some certainty moving ahead. I will be okay if you agree to the permanent sale of the water. I am unable to pay the 5/5/2014 payment at this time but my proposal of the water sale would include this payment."
3. On 29 April 2014 the plaintiff replied to the effect that all three of the plaintiffs would be affected by the sale of the security and would have to be involved in the decision. The letter stated the plaintiff's assumption that the sale of 300 ML would realise approximately $240,000 and continued: "…[W]e need clear confirmation as to what is going to occur with the distribution of those funds. i.e. how much is being retained towards interest? How much is coming off a loan? How much is being contributed towards the winter cropping program? … [W]e see little benefit in selling off the water and spending those funds on an ongoing cropping program when the reality is that none of those cropping programs will pay the total interest payable on the monies borrowed plus the reduction of security."
4. Darren Ciavarella and Shirley Ciavarella have both deposed that a meeting took place to discuss this proposal on 2 May 2014 at Yarrawonga in Victoria, approximately 200 km south of Leeton. Present were Darren Ciavarella, Shirley Ciavarella (holding an enduring power of attorney from her husband Matteo), Mr Gorman (a director of the plaintiff) and Mr Mulquiney (the plaintiff's solicitor). Darren Ciavarella held a letter of authority from the third plaintiff. He has deposed that a cash flow forecast which had been prepared by him in spreadsheet format was tabled at the meeting. The document identified by him shows "creditors" of $86,205 as at May 2014. It appears to provide a forecast of receipts and expenditures for the following months through to March 2015. It does not make clear whether expenditures shown in respect of March and April 2014 had actually been paid or how the "creditors" figure was made up.
5. The principal evidence tendered by the cross claimant's as to what occurred at this meeting is that of Darren Ciavarella at pars 51 - 54 of his affidavit sworn 15 February 2016, as follows: "Me: I want to sell the water to allow us to pay interest payments to Hargraves, so I can pay my creditors and other farm operational expenses. I would like the interest rate be reduced to 10%. Ross: You have honoured your side of the bargain by keeping up the interest payments and we will honour ours by reducing the interest rate. John: I am concerned that a secured asset is to be sold. Me: Yes, but you still hold $2,150,000 in property assets as security. If sale of water is allowed as per cash flow, I would get about $195,000 after paying 6 months interest of about $68,000 at 10% through to October 2014. I could use the $195,000 to pay creditors of approximately $130,000 and the remaining monies would be used for operational costs. Once the creditors are paid, it improves my financial position. Either Ross or John: Can you put Midgee up for sale? Me: Yes, I will, but I really don't want to sell Midgee because of the position NAB forced me into. I would like an opportunity to clean up Midgee prior to listing local and the sale of water would give me cash flow to be able to do so and look after the crops until the end of the year. Furthermore, if Midgee has not sold, I would like the opportunity to be able to pay a further 6 months interest until the end of June 2015 to allow me to further improve my financial position and give me the opportunity to then approach another lender. Ross: The door is always open and we are more than happy to talk to you. Me: I already have Midgee listed for sale with Ozfarms. If you want me to sell Midgee and a reasonable price is offered then I will. But I really don't want to. At the end of the day, mum and I are here to work with Hargraves to move ahead, selling the water will allow us to pay interest, creditors and have monies to look after the crops until the end of the year. You may have to hold the November interest payment to coincide with the 2014 grain harvest monies. Ross: No worries, just keep us informed. Ross [at some time during that meeting]: We agree with your proposal to sell water. We will confirm that with you in writing. There was no discussion at the meeting in relation to the two principal payments due under the Hargraves Loan in May 2014 and June 2014."
6. With respect to this meeting Shirley Ciavarella has deposed on 15 February 2016 that Darren said: "The water sale would make six months of interest payments available as shown on the cash flow. I can also pay about $130,000 worth of my creditors and the balance of the money would be used to look after the crops to bring them to harvest. … I will need money from the water sale so I can clean [Midgee] up and plant the winter crop to make it attractive for purchases. If Midgee doesn't sell I would like to extend the loan and find another lender."
7. She has further deposed that Mr Mulquiney replied "That should not be a problem. We agree to the sale of water and for the proceeds to be used as set out in your cash flow". According to this affidavit Darren Ciavarella asked "Would Hargraves agree to delay 6 months of interest payments from December 2014 the end of June 2015, if refinancing was not possible?" and Mr Mulquiney replied "We are always prepared to talk to you". Her affidavit confirms there was no discussion about repayment of the loan principal at this meeting on 2 May 2014.
8. Following the meeting Mr Gorman wrote on behalf of the plaintiff to Darren Ciavarella on 5 May 2014 stating that the plaintiff was "agreeable to sell the 300 megs of water off the 335 Fivebough Road, Leeton (sic)". The letter noted that "at the meeting after much discussion the Agreement reached was as follows". The following points appeared after that introduction: "1. Hargraves Secured Investments Limited would agree to release the 300 megs of water for sale at a price of $900.00 to $950.00 per meg; 2. These funds would be partially used to pay interest upfront as per your cash flow and further funds would be used to put in this year's crop to make the properties and in particular [Midgee] attractive for sale. [This was followed by a cropping program of acres to be planted on each of 3 farms]."
9. Assuming, as the cross claimant's contend, that the cash flow referred to was that which Darren Ciavarella has identified, it showed an interest payment of $68,500 being made in October 2014 and another of $22,833 in December 2014. 10% on the principal amount of $1.37 million for the 6 months from April to October inclusive would be $68,500. Two further months of interest at 10%, November and December, would be $22,833.
10. Mr Gorman's letter of 5 May 2014 continued with confirmation that "the Agreement would be that you would sell [Midgee] for a potential sale price greater than $1,100,000" and confirmed "…that we have agreed to the sale of the water but note that you will make all necessary arrangements for your agent to provide us with a report with regards to the sale of [Midgee] as a matter of urgency."
11. Upon this evidence it is pleaded in pars 15 and 16 of the cross claim that there was an agreement, partly oral and partly in writing, that the plaintiff would release from the Deed of Charge 300 ML of water to be sold at $900 - $950 per ML. The proceeds were to be partly paid to meet interest payments due under the Loan Agreement "and then paid" to Darren Ciavarella to meet expenses of irrigating and harvesting 2014 crops in on Midgee, Farm 557 and Farm 1863 in order to make those properties "attractive for sale".
12. Accepting the cross claimants' evidence at its highest, the exchanges of late April and early May 2014 were entirely uncertain as to how much of the balance proceeds from sale of the water rights, after payment of 6 months interest at 10% in October 2014 and a further $22,833 in December 2014 ($91,333), was to be applied (a) to outstanding creditors (as Shirley and Darren Ciavarella say was agreed) and/or (b) to expenses to be incurred after May 2014 of putting in, cultivating, irrigating and harvesting the 2014 winter crops. The versions of the conversation given by the cross claimants' witnesses refer to "about $130,000" owed to creditors. No precise figure, nor any figure approximating $130,000, can be gleaned from the cash flow which Darren Ciavarella has identified. Nor does the evidence show that any means of ascertaining the definitive figure to be paid to creditors was agreed. The plaintiff's letter of 5 May 2014 does not refer to utilisation of the proceeds of sale of water rights to pay existing creditors in any sum.
13. As to use of the proceeds for expenses to be incurred in respect of the crops after 5 May 2014, neither the conversation as deposed to by the Ciavarellas nor the correspondence from either party purports to quantify the amount or provides any formula or manner of deriving an amount which the parties could be taken to have agreed.
14. Agreement on these matters was essential if the discussions and correspondence of April and May 2014 were to give rise to a binding and enforceable agreement regarding application of the proceeds from the sale of water rights. In the absence of such agreement the plaintiff would be entitled to retain the proceeds of sale, the charge over them being one of the plaintiff's securities, and account for them to Matteo Ciavarella, in whose name the water rights were held.
15. By email of about 6 May 2015 addressed to Messrs Gorman and Mulquiney, Darren Ciavarella asserted "The balance of the water sale [after payment of commission to the sale agent and 6 months interest to the plaintiff] will go into my cash flow allowing me to pay creditors that have been waiting a long time and support myself through this year". In so far as this suggests that the entire balance would go to Darren Ciavarella to be applied as he saw fit, this communication came after the date upon which the cross claimants by their own pleading assert that an agreement regarding disposition of the proceeds had been concluded. There is no evidence that this sweeping proposal for Darren Ciavarella to take the entire balance had been assented to by the plaintiff or by the guarantor whose water rights were to be sold, Matteo Ciavarella, or his representative.
16. It is not contended by the cross claimants that the discussions and correspondence of April and May 2014 amounted to a binding waiver or deferral of Darren Ciavarella's obligation to pay instalments of principal in the amounts of $14,872.92 on 5 May 2014 and $14,962.86 on 5 June 2014 under clause 3 of the Loan Agreement: see [11]. There is no dispute that the borrower failed to pay those amounts.
17. The cross claimants have an arguable case that the conversations and correspondence of late April and early May 2014 gave rise to an agreed variation to the Loan Agreement with respect to the rate and timing of interest which was otherwise payable at 13.25% on 5 May 2014 and on the 5th of each month thereafter up to and including 5 December 2014. But for the effect of the Heads of Agreement, considered later in these reasons, the plaintiff would be entitled to summary judgment for its debt including interest calculated upon the basis of the rate reduced to 10% from April 2014 with the instalments for April to November 2014 deferred to October and December 2014. If it were not for the release contained in the Heads of Agreement the defendants would be entitled to leave to defend and to continue to trial on the issue of quantum. The issue would be as to the difference between the full balance calculated by the plaintiff in accordance with the Heads of Agreement and the reduced balance which would result from applying the lower rate and the deferred payments as per the alleged agreement of April and May 2014.
18. The residual issue to be tried would turn upon whether the conversations and correspondence of April and May 2014 resulted in agreement on the limited subject of a reduced interest rate and deferral of instalments. The plaintiff's counter argument would be that the parties negotiated only with respect to an entire arrangement, so that in the absence of agreement about how much of the proceeds of sale of water rights could be applied to existing creditors or future outlays for cropping, there was no binding agreement on any subject.
19. In describing the cross claimants' case as arguable with respect to variation of the loan obligations regarding interest I have taken the affidavits of Darren and Shirley Ciavarella at face value, as the Court is bound to do upon an application by an opposing party for summary judgment. However I recognise that the Ciavarellas' affidavits are likely to come under strong and effective challenge at trial because they appear inconsistent with Darren Ciavarella's letter to the plaintiff of 2 September 2014. That letter followed immediately upon the plaintiff having received the proceeds of sale of water rights, net of broker's commission. In it Darren Ciavarella referred to his earlier correspondence of 26 April 2014 (see [13]) and to "my subsequent visit to you in May 2014 requesting [emphasis added] that once the sale of the water went through" the proceeds should be applied to interest at a reduced rate and on deferred dates with the balance being disbursed "to pay my creditors and be able to look after the crops re water, fertilizer and chemical spraying".
20. In his letter of 2 September 2014 Mr Ciavarella made no suggestion that this "request" had been acceded to. He referred to the reduction of interest "to or below 10%" as "a proposal", not as the subject of a binding arrangement. It is apparent that at 2 September 2014 Mr Ciavarella did not recall any conversation from May 2014 which had given him to understand that the plaintiff had bound itself to accept reduction of the interest rate to 10% or deferral of the payments of April to November 2014 or disbursement of the whole balance of the proceeds to Darren Ciavarella. Consistently (only) with an understanding that these were matters for which he was still seeking the plaintiff's concession and indulgence, his letter concluded: "I would appreciate your urgent attention with regard this matter as the creditors have been more than patient."
21. The observations in the preceding two paragraphs are matters which would be relevant to the cross-examination of Darren and Shirley Ciavarella at trial. It is not open to the Court on this application to make a final determination of the apparent effect of the letter of 2 September 2014 in contrast with the contradictory terms of Shirley Ciavarella's and Darren Ciavarella's depositions, as a matter of credit.

Application of the proceeds of sale of the water rights

1. The proceeds of sale of the rights were received into the trust account of Shirley Ciavarella's solicitors on 28 August 2014. On 1 September 2014 the net amount after brokerage, $262,016.93, was paid to the plaintiff in accordance with a written direction from Shirley Ciavarella to the solicitors. The plaintiff replied to Darren Ciavarella's letter of 2 September 2014 (referred to at [30] - [32]) on 4 September, as follows: "We confirm that from the sum of $262,016.93 as received we have deducted …outstanding interest for the month of May, June, July, August and September being in the sum of $15,127.08 per month making a total of $75,635.40. Accordingly the balance of funds has held is in the sum of hundred $186,381.53 and these funds had been invested pending further discussions with you and with the security providers regarding the loan. We note that under the conditions of the loan you were required to pay the sum of $30,000.00 on 5 May, 2014 and a further $30,000 on the 5 June, 2014 and we note that these reductions in the principal amount have not been made. … We note that this loan which currently stands in the sum of $1,370,000.00 is due on 5 November, 2014. … On the basis that the sale of the water is funds that really belong to your father's Estate we would have to account to the Estate for clarification. … Accordingly before we can give any further consideration as to what is to occur with regards to the sale of water we would require production of dads Probate Parchment as it would appear at this stage that the moneys have been paid in on behalf of his Estate."
2. According to Darren Ciavarella's affidavit of 15 February 2016 he had a telephone conversation Mr Mulquiney on 29 August 2014 in which the latter said "I don't know that I can even give the money back now, it's not your money, it belongs to your dad's estate". Mr Ciavarella says he responded that it had been discussed at the meeting in May "that I would get the water sale money balance after payment of interest" and Mr Mulquiney said "You can't hold me to that".
3. Assuming at the highest for the cross claimants that such a conversation took place, albeit recognising the stark inconsistency with Darren Ciavarella's letter of 2 September 2014 (see [30]), the plaintiff's position was correct. Following the death of Matteo Ciavarella on 16 May 2014 and in the absence of any binding agreement having been made during his lifetime with respect to amounts which might be applied from the balance proceeds to Darren Ciavarella's outstanding creditors and/or his ongoing farming costs, the plaintiff required approval from someone with authority to bind Matteo Ciavarella's estate before making disbursements from the surplus proceeds of sale of the guarantor's security.
4. The cross claimants plead in pars 19, 22 and 27 of their cross claim that the plaintiff breached the alleged agreement of April and May 2014 by refusing to disburse any part of the proceeds of sale to Darren Ciavarella for use by him in covering the costs of crop farming activities on Midgee, Farm 557 and Farm 1863. This is unsustainable in the absence of an arguable case that a binding agreement requiring such disbursements had come into existence. In the absence of such an agreement binding upon Matteo Ciavarella's estate the plaintiff's refusal to disburse was lawful and correct.

The plaintiff's notice to attend farm debt mediation, 9 September 2014

1. The plaintiff gave to each of the defendants on 9 September 2014 a notice under s 8 Farm Debt Mediation Act 1994 (NSW). This stated that the plaintiff intended to take enforcement action against the properties over which it held a "farm mortgage", within the meaning of that Act, upon which the defendants were in default. The particulars of default were the failure to pay the principal and interest (combined) instalments which had fallen due on 5 May 2014 and 5 June 2014.
2. The cross claimants plead in pars 21, 24 and 25 of their cross claim that because the plaintiff held, as at 9 September 2014, $186,381.53 (being the balance proceeds from the sale of water rights, after interest to 5 September 2014 had been applied), there was no default under the Loan Agreement or under the security instruments. But this is not so. On the cross claimant's own case there had never been any agreed variation of the Loan Agreement with respect to the instalments of principal which had been due on 5 May and 5 June 2014. There was default on those and, following the death of Matteo Ciavarella and prior to the grant of probate of his estate (which did not occur until 1 October 2014), the plaintiff had no authority to apply any of the balance proceeds which it was holding in satisfaction of these defaults.
3. Pursuant to the notice under s 8, Darren Ciavarella and Shirley Ciavarella (the latter as executrix of the estate of Matteo and as attorney for the third defendant) attended a mediation on 26 November 2014. The cross claimants complain that the giving of the notice alleging their default on loan obligations prejudiced their prospects of refinancing with another lender. However they cannot establish an entitlement to damages on that account, which might be set-off against the debt owed to the plaintiff, because the giving of the s 8 notice is not actionable for the reasons given above.

The Heads of Agreement made at mediation

1. It is common ground that at the conclusion of a mediation on 26 November 2014 the parties signed Heads of Agreement in which all three defendants acknowledged they were indebted to the plaintiff for $1.37 million plus interest as calculated in an attached schedule. The schedule brought to account interest (a) at 13.25%, being $15,127.08 per month, for 5 May to 5 December 2014 inclusive and (b) at 10% for 5 January to 5 May 2015 inclusive. The reduced rate was an element of compromise agreed during the mediation. The total interest thus derived was shown as being paid out of the proceeds of sale of the water rights, which the plaintiff had received on 1 September 2014, leaving a balance of such proceeds of $83,916.99. It was agreed this would be paid to the defendants.
2. The reason interest was only calculated up to 5 May 2015 was that the schedule to the Heads of Agreement also required the defendants to enter into an unconditional contract for sale of Midgee by 27 March 2015. If this had not occurred the defendants agreed the plaintiff should have vacant possession of all of the mortgaged lands from 27 March and the defendants would, from 5 May 2015, pay interest on the unpaid balance at 17.25%.
3. Clause 2.2 of the Heads of Agreement was as follows: "2.2 The [defendants] from this date release and discharge the [plaintiff] in connection with all current and future actions, suits, causes of action, proceedings, claims, costs and expenses whatsoever both at law or in equity arising out of their relationship with each other and their dealings up to the date of this agreement in respect of the [securities]."
4. If the Heads of Agreement is valid and enforceable then none of the defendants' arguments concerning claimed set-offs are maintainable. On an application such as the present the question, in this respect, is whether the defendants have no arguable case against the validity of the Heads of Agreement or for relief in relation to it sufficient to enable them to escape, in particular, the release in clause 2.2. The test in General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125 is to be applied. Relevantly the case the defendants have pleaded in their cross-claim appears from par 37 thereof. It is asserted, very generally, that 1. the Heads of Agreement is unjust in the circumstances relating to it at the time at which it was made and that the conduct of the plaintiff was unjust within the meaning of s 7 Contracts Review Act 1980 (NSW); 2. "the conduct of the plaintiff" was unconscionable contrary to ss 12CA or 12CB Australian Securities and Investments Commission Act 2001 (Cth) and 3. "the conduct of the plaintiff" was unconscionable contrary to ss 20 or 21 The Australian Consumer Law.
5. These allegations are not particularised in the cross-claim. The affidavits filed disclose no case which could even arguably sustain them. Darren Ciavarella's affidavit of 15 February 2016 at pars 97 - 121 describes the course of events which culminated in the signing of the Heads on 26 November 2014. It shows that he and the other defendants were legally advised in the lead up to the mediation and during it. They had the services of two different firms of solicitors, in succession. These solicitors were provided with detailed instructions about the conversations and correspondence of April and May 2014, including written instructions from Darren Ciavarella. The solicitors tendered advice about the efficacy of the agreement which Darren Ciavarella alleged had arisen from these communications. The solicitors for the defendants corresponded with Mr Mulquiney during late September and October 2014 about the alleged agreement for distribution of proceeds from the sale of water rights, as per their instructions.
6. At the mediation the defendants were represented by two solicitors and had the additional assistance of two rural counsellors. None of the evidence from Darren Ciavarella concerning these matters shows the slightest colour of unconscionable conduct on the part of the plaintiff or of unfairness or injustice in the course of events up to the execution of the Heads on 26 November 2014.
7. In an affidavit sworn 29 April 2016 at pars 25 and 26 Darren Ciavarella has deposed that at the mediation he was under considerable financial pressure as he had lost the winter crops planted on the subject properties, for want of funds to meet the costs of cultivation, irrigation and harvest. Further he says that at this time he was depressed and taking prescribed anti-depressant medication, which was proving not to be efficacious. Darren Ciavarella says he was tired and confused during the mediation. None of this adds to the non-existent case on unconscionability, injustice and unfairness of the mediation process or of the agreement in which it culminated.
8. Shirley Ciavarella, in pars 22 to 32 of her affidavit sworn 15 February 2016 does no more than confirm that the defendants had ample legal advice prior to and during the mediation.
9. It is a requirement under r 13.1 of the Uniform Civil Procedure Rules that for the Court's power to grant summary judgment to be enlivened there must be evidence (a) of the facts on which the plaintiff's claim is based and (b) that in the belief of some responsible person, giving evidence on behalf the plaintiff, the defendant has no defence. Mr Gorman has deposed on behalf of the plaintiff to these matters. With respect to evidence of the plaintiff's claim he has identified the Loan Agreement, mortgage and other security documents, Heads of Agreement and relevant correspondence between the parties.
10. As there is no arguable case that the Heads of Agreement does not bind the defendants, the effect of its clauses is to enable precise quantification of the debt which is owed by Darren Ciavarella, guaranteed by the second and third defendants and secured by mortgage of the properties of which the plaintiff now seeks possession. Non-payment of the balance of this debt, remaining after sale of collateral securities, is not in issue. Nor is there any argument about the plaintiff's compliance with the formalities of giving the notices which are prerequisites to it entering into possession.
11. By clause 35 of the standard memorandum which is referenced in the mortgage, any agreement under which the mortgagor incurs or owes obligations to the plaintiff is "an agreement covered by this mortgage". Clause 18 identifies events of default. These include failure to pay the amount owing under the mortgage and failure to do anything required under an "agreement covered by this mortgage". Pursuant to these provisions the Heads of Agreement was "covered by [the] mortgage". The evidence shows and it is not in dispute that the Heads were breached by failure of the defendants to pay the amounts required to be paid thereunder and by their failure to enter into an unconditional contract for the sale of Midgee by 27 March 2015.
12. Clause 19 of the standard memorandum referenced in the mortgage provides that the mortgagee's rights may be enforced upon the occurrence of an event of default. Accordingly, having regard to the findings and conclusions stated above, the plaintiff is entitled to be granted the relief which it claims, summarily. Namely, judgment for possession of the two properties and of the residual water rights and judgment for the agreed balance of the debt calculated under the Heads of Agreement.

Orders

1. The orders of the Court are: 1. Judgment for the plaintiff, Hargraves Secured Investments Limited, for possession of the property known as "Farm 557" situated at 557 Fivebough Road, Leeton in the State of New South Wales, being the whole of land comprised in Certificate of Title Folio Identifier 607/257123 and the property situated at 333 Fivebough Road, Leeton in the State of New South Wales, being the whole of land comprised in Certificate of Title Folio Identifiers 2/859771, 633/44540, 317/751742 and Murrumbidgee Irrigation Limited (ABN 39 084 943 037) Landholding Reference Number 1055700, 21 Megalitres and 21 B Class Shares under Certificate SC001388. 2. An order that the plaintiff, Hargraves Secured Investments Limited, have leave to issue a Writ for Possession forthwith in respect of the property known as known as "Farm 557" situated at 557 Fivebough Road, Leeton in the State of New South Wales, being the whole of land comprised in Certificate of Title Folio Identifier 607/257123 and the property situated at 333 Fivebough Road, Leeton in the State of New South Wales, being the whole of land comprised in Certificate of Title Folio Identifiers 2/859771, 633/44540, 317/751742 and water underMurrumbidgee Irrigation Limited (ABN 39 084 943 037) Landholding Reference Number 1055700, 21 Megalitres and 21 B Class Shares under Certificate SC001388. 3. Judgment for the plaintiff, Hargraves Secured Investments Limited, against the defendants for $1,467,612.56 as at 5 June 2015. 4. The defendants pay the plaintiff's costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 June 2016