The proceedings
7The borrowers defaulted. Mr Hilton then commenced these proceedings by statement of claim filed on 8 May 2008. An amended statement of claim was subsequently filed on 4 June 2008. Before that occurred Paul Fordyce, the solicitor who had prepared the original deed of loan upon the instructions of the borrowers, mistakenly filed a submitting appearance on behalf of all four defendants. This is referred to below.
8In the meantime, on 2 July 2008, Mr Hilton moved the Court by notice of motion filed on that day for, among other things, judgment for $561,475 and a declaration that he had an equitable mortgage over the Stanmore property. By notice of motion filed on 23 July 2008, all four defendants sought leave to withdraw their submitting appearances pursuant to UCPR 12.5. That rule is as follows:
"12.5 Withdrawal of appearance
An active party may withdraw an appearance by leave of the court."
9The application was supported by an affidavit sworn by Mr Fordyce in which he said that the submitting appearance was filed in error. Ms Berkemeier and Mr Bickel also swore affidavits in which they said that they never instructed Mr Fordyce to file a submitting appearance. Ms Berkemeier also said that she had "been recently advised... that there may be an arguable defence and/or a possible cross claim available to me in connection with these proceedings and I would like an opportunity to be heard in respect of those possible applications."
10The applications to withdraw the submitting appearances first came before Hislop J on 12 August 2008. In the course of submissions, his Honour made the following remarks that have, in the events that have occurred, achieved a degree of significance in the present application:
"There is probably sufficient evidence for me to accept that the appearance was entered by mistake in so far as it containing the submitting paragraphs. The evidence from the four defendants supports the solicitor in saying that he did not have instructions. The only argument you have here, which may be viable, is that it ought to be a matter for the Judge to consider, in the exercise of his discretion, whether there is any bona fide defence. That has not been addressed. I can understand why those representing the defendants could be led into error if they took the annotation in Ritchie at face value."
11His Honour later continued:
"Assuming that there was an application made by the defendants to put on, either a sworn defence or an affidavit setting out what the defence would be, so they could be considered, would you have an objection to such an application being granted? At the moment it seems to me that is the only fair way of dealing with it if your contentions are right."
12His Honour expressed the view that such an approach could be taken according to a strict timetable and that it was desirable to have Ms Berkemeier's defence "committed to affidavit". Despite opposition from counsel for Mr Hilton, his Honour expressed the view that it was appropriate for the defendants to be afforded an opportunity to put on such evidence as they saw fit concerning the merit of any defence available to them. His Honour therefore adjourned the proceedings to 3 September 2008 with a direction that the defendants file and serve any further evidence as to the merits of their defence by 26 August 2008.
13Before the matter returned to Hislop J, the defendants had changed solicitors and had retained Mr Margiotta. He filed an amended notice of motion, which was served on 2 September 2008, in which the defendants also sought leave to file defences in the proceedings. For her part, Ms Berkemeier swore an affidavit on 2 September 2008. The matters to which Ms Berkemeier deposed are pertinent to the present application and are as follows:
"1. I am the fourth defendant in these proceedings. The first defendant, Isobelle Gidley, is my elder sister.
2. I am an early childhood teacher. I currently work casually as an early childhood teacher, teaching preschool & primary school, concentrating mostly on years 1 to 3.
3. I was born in Vanuatu. I lived in Vanuatu until the age of 7 with my parents and my sister. At the age of 7 we went to England and when we returned we moved to Norfolk Island. I was partly schooled at home and spent 3 years in primary school on Norfolk Island. I attended secondary school in Sydney. After school I started studying a Bachelor of Arts at University, but could not complete it. I left University and attended Kindergarten Teachers College at Waverley, and obtained a Bachelor of Arts degree, majoring in sociology and history. I then went to South Africa and married my husband where he worked as a mining engineer. When we left South Africa in November 1974 we went to live in Vanuatu returning for the birth of our first child in Sydney. In 1977 we returned to Vanuatu and lived on our parents coconut plantation. Due to problems at independence of Vanuatu in 1980 we returned to Port Vila where I ran a pre-school. In 1981 we returned to Sydney. When I returned I helped care for our mother who had Alzheimer's disease. In 1984 I divorced and in 1986 our father died, after which I became depressed and had a mental breakdown. I also lost my children to my former husband and had to fight to get them back. After my divorce I was left with no roof over my head and in a very poor financial state. Isobelle helped me get back on my feet.
4. For many years I have relied on Isobelle to assist me, both financially and in other matters. It is part of the culture of Vanuatu that each family member helps the other in financial as well as other matters. As she is the elder sister in an islander family, I rely on her to assist me financially and for emotional support. She helped me with my 2 children after I was divorced.
5. I am one of the registered proprietors of the property known as ... Douglas Street, Stanmore. The property is contained in 2 titles... I am registered as a proprietor on each of the titles as tenant in common in equal shares with Daniel Bickel. The property is an old house which has been subdivided into 2 separate apartments. I live in one apartment, and Daniel lives in the other.
6. Daniel and I first started living in ... Douglas Street Stanmore in about 1999. In approximately 2007 we purchased the property. Neither Daniel nor I had the money to provide a deposit for the purchase. Isobelle gave the deposit to us as a gift. She did so to give Daniel and I somewhere to live. Isobelle also arranged for Daniel and I to take out a loan from St George Bank to buy the property. Daniel contributes to the loan repayments. I am not able to earn enough money from my casual teaching job to pay the monthly instalments on the loan, so Isobelle and Richard make whatever repayments Daniel and I cannot make.
7. I see Isobelle most days. Due to my psychological condition the Psychiatrist advised that I am not to live alone or to involve myself in legal matters as this causes me to get anxious. Approximately a few weeks prior to 6 December 2007 Isobelle had informed me that she was involved in some transaction under which the US government was to provide funds for a project in Vanuatu. I did not know precisely what the project involved.
8. On the morning of 6 December 2007 I received a telephone call from Isobelle during which words to the following effect were said:
'You have to come into town and meet with Paul Fordyce. He wants you to come and sign some documents.'
9. Isobelle did not tell me what documents Paul Fordyce wanted me to sign, or why I was to sign them. She gave me an address to go to, and I went to the office of Mr Paul Fordyce in the city. I had never met him before. There I attended a meeting at which were present Paul Fordyce, Isobelle, Richard, Rory McDonnell, Norman Hilton, Daniel and myself. I cannot recall how long the meeting lasted, to be the best of my recollection it was about 2 hours. The meeting spanned lunchtime, and I recall that there was a plate of sandwiches brought in for lunch. Richard was not there for the entire meeting. He went in and out of the meeting, and then left for a time. Daniel attended the meeting but at some time left to go to work. I recall that at one point Norman Hilton left the meeting. I can't recall why he left the meeting. He returned and informed the meeting that he could transfer the funds. I recall that at the meeting somebody said at the meeting words to the effect:
'The funds have to be transferred this afternoon or else we will miss the deadline for the funds to arrive in the USA. If we miss the deadline, the deal will be lost.'
10. At the meeting, we sat around a table in Mr Fordyce's office. Mr Fordyce was typing a document, and was also writing things on a white board. I was not able to understand what was written on the whiteboard. I recall that on a few occasions during the meeting, words to the following effect were said by Isobelle:
'The deadline for the funds transfer is this afternoon. If the funds aren't transferred by this afternoon, the deal will be off.'
11. I recall that there was urgency expressed by those present at the meeting to get the Loan Deed signed quickly, right then and there, so that Mr Hilton could transfer the funds by that afternoon to meet the deadline.
12. Before I signed the Loan Deed, nobody ever said, either at the meeting or at any other time, that by signing the Loan Deed I was in any way agreeing to guarantee the obligations of Isobelle or Richard under the Loan Deed, or in any way become a surety for the repayment to Norman Hilton of the moneys he was advancing to Isobelle. Nobody, either at the meeting or at any time before it, ever mentioned that by signing the Loan Deed I was giving a mortgage over my property at 82 Douglas Street Stanmore to secure anything. Nobody mentioned a mortgage, or charge, or anything like it, either by myself, Daniel, Isobelle or Richard. Nobody mentioned the fact that my home was on the line or being used as security for anything at all. Prior to signing the deed nobody said to me that if the moneys advanced by Norman Hilton to Isobelle were not repaid on time, Norman Hilton could sell my Stanmore property to recovery anything. At the meeting, nobody mentioned anything about a transfer of shares in VIDA to secure anything. Nobody mentioned a transfer of shares in VIDA to Norman Hilton as part of the payment to him for lending the money. No one mentioned the rate of interest that the loan was to carry, or when it was to be repayable.
13. When Mr Fordyce finished preparing the Loan Deed, copies were made and distributed to everybody. I had a copy of it. Just prior to the time I signed the Loan Deed, Mr Fordyce said to me words to the effect:
'You can go to another lawyer and get your own legal advice about this.'
I knew that the deadline for transferring the funds was due to expire soon. I replied to Mr Fordyce 'No.' I did not attempt to obtain any legal advice from anyone about the contents of the Loan Deed because I knew that there was no hope of engaging another lawyer to give me any advice about it and meet the deadline, and because I did not know that there was anything in the Loan Deed which would warrant doing so. I knew that deed had to be signed almost immediately to enable Mr Hilton to make the transfer by the deadline that afternoon, and I was under a great deal of pressure to sign the Loan Deed then and there. I signed the Loan Deed.
14. Prior to the time I signed the Loan Deed, I did not know that by signing it I was giving a mortgage or charge over my Stanmore property to secure the obligations of Isobelle and Richard under the Loan Deed, or to secure anything at all. I did not know what the obligations of Isobelle and Richard under the deed were. Prior to signing the Loan Deed nobody said to me that Norman Hilton was advancing the amount of USD$350,000.00 and $AUD$20,000.00. I thought I heard someone say at the meeting that he was advancing $250,000.00. Nobody said to me what the terms of the loan was, although Isobelle did say to me during the meeting words to the effect that she would repay the loan in a short time. I did not know that by signing the Loan Deed I was guaranteeing anything at all. I certainly did not know that the legal effect of me signing the Loan Deed was to give Norman Hilton a right to sell my Stanmore property to recover the amount he loaned to Isobelle if the loan was not repaid in time. Had I known that I was giving a mortgage or other security over my home to secure any of the obligations of Isobelle or Richard under the Loan Deed, or that my property was to be put on the line to repay the loan, or that I was guaranteeing the loan in any way, I would not have signed the Loan Deed.
15. I never received any advice at all about the meaning or effect of the Loan Deed on me if I signed it, or about the wisdom of entering into the transaction at all. Nobody mentioned to me that I should take any advice apart from legal advice as to the prudence of signing the Loan Deed, or about the risk that Isobelle would not be able to repay the loan moneys in accordance with the terms of the Loan Deed.
16. I knew that the funds Isobelle was borrowing from Norman Hilton were to go to a lawyer in the USA and to be used as a security deposit, to enable the deal in Vanuatu to take place. I did not know to whom they were to be transferred, or the terms on which they were to be deposited. I did not know how Isobelle would be able to repay the loan, or on what terms the money deposited in the USA might be returnable to her. I did not know who or how Isobelle was to receive any money in connection with the proposed deal in Vanuatu. I wanted to help Isobelle because she has always looked after me financially. I also wanted to help the people of Vanuatu. I trusted Isobelle not to enter into any transaction, and not to permit me to enter into any transaction, which might put me at risk financially, and to stop me from entering into any transaction which might put me at financial risk.
17. To the best of my recollection, Daniel signed the Loan Deed first, and then left hurriedly. I also signed it, only a few minutes after Paul Fordyce had told me that he was not acting for me and that I could obtain legal advice from my own lawyer.
18. I refer to the notice of appearance filed on 26 May 2008 and signed by Mr Paul Fordyce. I did not know that Mr Fordyce was acting on my behalf, or purporting to act on my behalf in the proceedings until a few weeks ago. A few weeks ago, Isobelle told me that I had to go and see a lawyer named Atticus Busby, who was employed in Mr Fordyce's office. He informed me that there were proceedings against me, that he had been acting on my behalf, and that he could no longer act for me because of a conflict of interest. That was the first time I was informed of the existence of any proceedings against me, or that any claim was made against my Stanmore property, or that I had signed a document which gave Mr Hilton a mortgage over my property, and that he was attempting to get orders permitting him to sell my property to recover amounts owed to him under the Loan Deed. I had never instructed either Mr Fordyce or anyone else to either act for me, or to file a notice of appearance, or to take any action submitting to such order as the Court may make. I had never been asked by anyone whether or not I wished to file such a document or to take any such action. I had never received any advice from anybody about what course was open to me to take in the proceedings. Mr Busby suggested a solicitor for me and Daniel to go to see. Daniel went to see the solicitor, but was unimpressed by the fact that the solicitor did not return his calls. Isobelle ultimately found a new solicitor for me to go to, Mr Margiotta. I first met with and instructed Mr Margiotta on Sunday 31 August 2008."
14On 6 March 2009 Mr Margiotta wrote to Ms Berkemeier. He informed her that he had filed a notice of intention to cease acting for her in relation to the matter, as foreshadowed in his letter dated 17 February 2009. His letter went on to advise Ms Berkemeier in the following terms:
"Your motion to withdraw your submitting appearance is listed for finalisation of hearing before his Honour Mr Justice Hislop on Tuesday, 17 March 2009 at 10.00 am. Following the hearing before his Honour Mr Justice Hislop the matter has been listed for another status conference on Monday, 23 March 2009. Each party has been given liberty to restore the matter to the list on two days' notice.
It is important that you instruct other solicitors in this matter to finalise the hearing of your motion to withdraw your submitting appearance on 17 March 2009 otherwise you and the other three (3) defendants will admit the full claim made by the plaintiff Norman Anthony Hilton in this matter.
We advise that all defendants including yourself seek independent legal advice from different solicitors."
15On 2 April 2009 the matter again came before his Honour. Ms Gidley appeared in person. There was no appearance for the other defendants. The matter was stood down to 2.00pm to enable them to be present at Court, Ms Gidley having agreed to contact them. All defendants attended at 2.00pm. They indicated to the Court that they desired to have an opportunity to get legal advice and either be represented on the next occasion or resolve the matter before then. The parties agreed to the matter being adjourned to 21 April 2009. Ms Berkemeier was informed that she would not have to attend Court if she had legal representation on the next occasion.
16The proceedings returned before Hislop J on 21 April 2009 as anticipated. Ms Gidley attended in person. There was no appearance for any of the other defendants. However, counsel for Mr Hilton provided his Honour with a letter that became MFI 1. The letter was written by Mr Lombardo of Lombardo Consulting, a solicitor's firm, dated 20 April 2009, addressed to Peter McLachlan, a partner of McLachlan Thorpe, solicitors then acting for Mr Hilton, and was in the following terms:
"As you know at short notice I have been caste into the role of providing independent advice to Daniel Bickel and Cynthia Berkemeier ('my clients'). I now wish to write on behalf of my clients to explain their position.
1. My Clients will not be signing any further documents whether they be additional guarantees or mortgage documents.
2. Further to the last point, my clients did not want to provide the existing questionable guarantees but were pressured to do so without any real disclosure of their risks and or the transaction. I am also instructed, and have no reason not to believe them, that the pressure was applied by Gidley, Hilton and their lawyer.
3. I have examined the position of my clients holistically covering their capability financially, mentally etc. and have come to the conclusion that there are many reasons why they are unfit to take upon the roles that Gidley, Hilton and others want them to now take.
4. Further to the last point, my clients should never have been involved in the transaction as they were mentally and financially unfit to do so.
5. I have considered the reasons why my clients were ever caught up in the affairs of Gidley, Hilton and others and have come to the following conclusions:
(a) Apart from providing guarantees, my clients had no role in the transactions being advanced by Gidley, Hilton and others. They were never rewarded, nor were they ever to be rewarded.
(b) The guarantees were in my view improperly obtained from disadvantaged persons (i.e. my clients) and that my clients were the subject of unfair and unconscionable pressure including being summonsed to a short notice meeting.
(c) That one lawyer acted for all parties and that Gidley and Hilton appear to have in concert structured their transaction ignoring the needs of my clients.
(d) It seems to me that Gidley and Hilton struck a deal and then had my clients unfairly and unconscionably insure any potential losses.
(e) I find it hard to believe that neither Gidley and Hilton did not know or suspect that my clients were unfit to participate in the transaction.
(f) I find it hard to believe that neither Gidley and Hilton or the lawyer present could not have insisted that my clients obtain independent legal advice; not the sham opportunity allowed (i.e. they had 10 minutes and were discouraged to do so).
6. I believe that if either of my clients, whether together or alone, would have obtained independent legal advice at the time the transaction was being structured by Gidley, Hilton and the lawyer my clients would not have given the guarantees.
7. Notwithstanding the litigation Gidley and Hilton still freely communicate with each other.
8. It appears to me that Gidley and Hilton, whilst involved in litigation against each other seem to me to again be in concert imposing unfair and unconscionable pressure on my clients including under the cloak of non-prejudice discussions (Note: I am not suggesting legal counsel are acting improperly).
9. Further to the last point, it seems to me that both Gidley and Hilton both want to settle their dispute.
10. It seems to me that that, in concert, Gidley and Hilton appear to be imposing further burdens on my clients. It is almost as if Gidley and Hilton will settle their dispute and my clients will pay for the losses that should in fact be borne by Gidley and or Hilton.
11. Further to the last point, it seems to me that the guarantees given were questionable (and in my opinion unfair and unconscionable) and now both Gidley and Hilton appear to be back again seeking to perfect the guarantees and this time ensure that the loss is borne by my clients.
12. My clients should not be communicating directly with either Gidley or Hilton in relation to their affairs as they are not capable of dealing with any of the issues on any level.
13. Cynthia Berkemeier appears to me to be riddled with medical and psychological issues.
14. It is inevitable that my clients will have to be involved in litigation. They can either have the dispute now in relation to questionable guarantees, or wait until Hilton (or another party) calls on the perfected guarantees.
Recommendations
15. This dispute is really a dispute between Gidley and Hilton that should not have ever involved my clients. Gidley and Hilton should settle their dispute in a manner that also releases my clients from any claims.
16. My clients should not sign any further documents.
17. My clients should start a cross claim against Gidley and Hilton to have the guarantees struck out.
18. The lawyer that acted for all parties should be joined in any proceedings.
19. This correspondence should be provided in any proceedings on foot between any of the parties."
17Mr Hilton's counsel pressed for the application to withdraw the submitting appearances to be dismissed. In that context, and with the benefit of Mr Lombardo's letter, his Honour engaged in the following discussion with Mr Hilton's counsel:
"HIS HONOUR: The difficulties are that, on the face of this material, each of [the second, third and fourth defendants] may have at least a mountable case.
COUNSEL: Well, your Honour, that may be right. But a party who files a submitting appearance, files a submitting appearance and, as I say, takes no step to withdraw it, is bound by that submitting appearance, in the same way as a party who fails to deliver a defence, if judgment is obtained in default, is bound by that judgment unless and until steps have been taken to withdraw it."
18Counsel for Mr Hilton continued a little later in these terms:
"COUNSEL: Yes. I fully accept that [the second, third and fourth defendants] may have an arguable defence. I don't concede the issue, but if someone were here today, they would be in a position to put forward the argument. Whether it succeeds is another matter.
The court, in the absence of, first of all, a submission to that effect, but also the person actually being here, the court is left in the position as if, in a sense, they had never appeared on the notice of motion. In those circumstances, the court would not determine the notice of motion in the absence of the moving party. The appropriate course is to dismiss the notice of motion, but that is not a res judicata for all time.
If the defendants subsequently wished to apply for that order to be set aside, they can do so. Rule 36.16 certainly gives an express power for the court to review its own orders where a party was absent at the time of making those orders, whether deliberate or not."
19Hislop J responded by reference to the possible consequence of acceding to Mr Hilton's proposed approach:
"HIS HONOUR: I am concerned about a number of things. One of the matters I am concerned about is the fact that the three other parties, for reasons which are not apparent to me, have not come to Court today, in circumstances where they apparently sought some legal advice and, for some reason, a lawyer is not appearing. He, however, has outlined, in a letter which you passed up to me, certain bases which would prime facie, establish an arguable case. I am therefore reluctant to complete the notice of motion in these circumstances.
I appreciate what you say. That it can be turned around and one can seek to set aside any order I make. That only creates additional expense and the like, if it is pursued. That is the first point.
I am being frank with you. These are my concerns."
20Despite those concerns, Hislop J published his reasons for judgment on 22 May 2009: see Hilton v Gidley [2009] NSWSC 383. He dismissed the defendants' notice of motion with costs. His Honour dealt with the substantive issues before him at [18] - [26] as follows:
"[18] Rule 12.5 UCPR provides:
'An active party may withdraw an appearance by leave of the court.'
'active party' is defined in the dictionary to the UCPR as:
'in relation to any proceedings, means a party who has an address for service in the proceedings, other than:
(a) a party against whom judgment has been entered in the proceedings, or
(b) a party in respect of whom the proceedings have been dismissed, withdrawn or discontinued,
being, in either case, a party against whom no further claim in the proceedings subsists'."
[19] Rule 12.5 UCPR confers a discretion on the Court. In Firth v John Mowlem and Co Ltd [1978] 3 All ER 331 Megaw LJ (with whom the other Justices agreed) said, in respect of a similar rule in the UK:
'Each case had to be looked at on its own particular facts, and the judge has a discretion. There was here what can properly be called a 'mistake' and, subject to the question of the exercise of the court's discretion, the judge had jurisdiction to make the order which he did and to set aside the unconditional appearance.'
I accept that that principle is applicable in relation to r 12.5 UCPR. I also accept, by analogy with the principles developed in relation to setting aside a default judgment pursuant to r 36.16 UCPR, that, in exercising the discretion, a relevant factor is whether the defendant can show an arguable defence.
[20] Counsel for the plaintiff 'handed up' correspondence from the second to fourth defendants (MFI 1) which he put before the Court:
'as a matter of my duty in the absence of those persons,
particularly where they have been acting in person, they were clearly aware on the last occasion of the state of play.'
[21] The first item of correspondence was an email dated 20 April 2009 to the plaintiff's solicitor from a solicitor who had provided advice to the third and fourth defendants. The email contained material which, if proved, may establish an arguable defence for the third and fourth defendants. The email contained a recommendation [19]:
'this correspondence should be provided in any proceedings on foot between any of the parties'
[22] A second email from that solicitor to the plaintiff's solicitor stated:
'My short notice retainer was to provide a holistic independent opinion to the third and fourth defendants. I have done that.
No time has been allowed to me to carry out any work to be able to appear tomorrow.
In any event, I'm outside Sydney tomorrow.
I am checking with Daniel and Cynthia what they wish to do.
Out of fairness I think that Daniel and Cynthia should be given time to prepare a defence.'
[23] There was also an email dated 20 April 2009 from the second defendant to the plaintiff's solicitor in which he concluded:
'I do not believe I can contribute by attending today [Tuesday 21 April] court hearing but if necessary at any time you can contact me on...'
[24] Counsel for the plaintiff submitted that the appropriate course was for the Court to dismiss the notice of motion in respect of the second, third and fourth defendants as there was no evidence in admissible form before the Court to establish that an arguable defence was available to any of them; there was no evidence of an intention to pursue the notice of motion to its conclusion and each of them, it would seem, had made a deliberate decision to absent him or herself from the hearing, the third and fourth defendants, at least, after obtaining legal advice. He submitted that if the second to fourth defendants or any of them had an arguable defence which they wished to pursue and an explanation for their absence from the hearing they could move the Court to set aside any order made in their absence pursuant to r 36.16(2)(b) UCPR.
[25] I accept the evidence of Mr Fordyce and the other witnesses that Mr Fordyce had not been instructed to file a submitting appearance, that such had been filed and served as a result of an error in his office and that the first to fourth defendants had not intended to submit to the orders sought by the plaintiff at that time. However the only evidence of the second to fourth defendants which has been admitted as to an arguable defence was that contained in the affidavits of 21 July 2008 that he/she had been advised 'there may be an arguable defence and/or a possible cross-claim available to me'
.
[26] In these circumstances, having regard to the delay in the proceedings, the plaintiff's understandable desire to proceed with his claim, the absence of the second to fourth defendants and the lack of evidence put forward by them to establish an arguable defence I accede to the plaintiff's request and dismiss the notice of motion in relation to those defendants with costs."
21On 5 August 2009 the proceedings came before Patten AJ on Mr Hilton's application seeking judgment for $678,614 and a declaration that he had an equitable mortgage over the Stanmore property. Mr Hilton also sought an order for possession of the property and an order for its sale. Patten AJ made those and other orders on that day.
22Mr Hilton's application for final judgment was supported by affidavits from Peter Hodges sworn 9 July 2008 and Mr Hilton sworn 3 August 2009. Mr Hodges' affidavit referred to what might be described as formal matters in support of the application. It is unnecessary to refer to it further.
23Mr Hilton's affidavit also contained evidence of a series of formal matters. He annexed a letter from Westpac Banking Corporation, the first mortgagee, dated 20 July 2009, indicating that Ms Berkemeier and Mr Bickle owed the bank approximately $800,000 and that the bank was in effect indifferent to the outcome of Mr Hilton's application. Mr Hilton's affidavit made no reference to the events of 6 December 2007 when the deed of loan was executed, the proceedings before Hislop J or to any material that had been placed before his Honour, including MFI 1.
24By notice of motion filed on 14 October 2013, Mr Hilton sought the following order:
"1. That pursuant to leave granted for the issue of a writ of possession on 5 August 2009 the writ of possession be issued in respect of the land...situated at and known as ...Douglas Street, Stanmore."
A writ of possession issued on 30 October 2013. Ms Berkemeier was served with notice to vacate the Stanmore property by 10am on 10 December 2013.
25By a later notice of motion filed on 20 November 2013, Mr Hilton sought orders varying orders made by the Deputy Registrar, including a vesting order with respect to the Stanmore property. An affidavit of Christine Louise Perry sworn on 19 November 2013 indicated that as at 30 September 2013, Mr Hilton was owed almost $925,000.
26It would appear clearly that Mr Hilton's latest application has prompted Ms Berkemeier's 6 December 2013 notice of motion. It is supported by her comprehensive affidavit sworn 17 January 2014. Much of what Ms Berkemeier deposes to in that affidavit is an understandable repetition of material referred to in her 2 September 2008 affidavit, to which I have already referred. To the extent that it contains new material, it is referred to in what follows.