Karingal St Laurence Limited v Nguyen [2026] VSC 85

(a) that judgment be entered against the defendants and in favour of genU for the principal amount of $3,500,000 plus interest;

(b) appointing a receiver without security over the four properties (Charged Properties) charged pursuant to the terms of a settlement agreement dated 27 June 2025 (Settlement Agreement) pursuant to s 37 of the Supreme Court Act 1986 (Vic) (Supreme Court Act) and r 39.02 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) (Rules) for the purpose of taking steps, executing all documents and doing all things necessary to sell those properties; and

(c) with respect to costs.

1. The Charged Properties, which are registered in the name of Mr Greenwood, had been held by him in the following capacities:

(a) in his own right (and hence they are now an asset of the Estate):

(i) 24 Bond Street, Newtown, Victoria (Bond St); and

(ii) 9 Pilrig Avenue, Newtown, Victoria (Pilrig Ave)

(b) as trustee of the KR Greenwood Family Trust (Trust):

(i) 67 Westlakes Boulevard, Lara, Victoria (Westlakes Bvd); and

(ii) 26 Rodney Road, North Geelong, Victoria (Rodney Rd)

1. Mrs Pauline Greenwood (Mrs Greenwood) and ROM do not oppose the application for judgment for debt, but oppose the application for the appointment of a receiver to the Charged Properties.
2. Shane Deane of VR Dye & Co has given his written consent to be appointed as receiver of the Charged Properties.

1. genU has filed and relies upon the following materials:

(a) summons dated 5 December 2025 (Summons);

(b) affidavit of Nigel Evans affirmed 4 December 2025; and

(c) submissions dated 17 February 2026.

1. genU also referred to the Trust deed which is attached to the affidavit of Mr Greenwood sworn 14 October 2024.
2. Mr Nguyen has not filed any affidavit material or submissions.
3. Mrs Greenwood, in her capacity as executor of the Estate, and ROM have filed and rely on the following materials:

(a) affidavit of Mrs Greenwood affirmed 30 January 2026;

(b) affidavit of Trisha Gay Lingard sworn 17 February 2026; and

(c) submissions dated 17 February 2026.

1. The following facts would appear to be uncontroversial.
2. genU is a large not-for-profit organisation operating in the social and community sector.
3. Mr Nguyen was formerly employed by genU as its Information Communications Technology Operations Manager.
4. ROM was a former supplier of information technology equipment and software to genU.
5. Westlakes Bvd is the family home of Mrs Greenwood and Mr Greenwood, deceased.
6. In 2024, genU commenced proceedings against the defendants alleging they were involved in fraudulent conduct concerning the invoicing and leasing of IT equipment.
7. On 27 June 2025, genU and the defendants entered into the Settlement Agreement, in the latter case 'without any admission of liability'. The agreement provided for payment of $5,900,000 (Settlement Sum) by three instalments as follows:

(a) $1,400,000 to be paid within 14 calendar days of the Execution Date;

(b) $3,000,000 to be paid within 90 calendar days of the Execution Date; and

(c) $1,500,000 to be paid within six months of the Execution Date.

1. The Settlement Agreement also contained provision for payment of interest on any unpaid balance, for the Charged Properties to be charged with payment of the Settlement Sum, and conferred on genU a right to caveat.
2. On 11 July 2025, the first instalment of $1,400,000 was paid under the Terms of Settlement.
3. On 25 September 2025, the defendants failed to pay the second instalment of $3,000,000 due under the Terms of Settlement.
4. On 15 October 2025, the defendants made a part payment of $1,000,000 in respect of the second instalment due under the Terms of Settlement.
5. The defendants are in default under the Terms of Settlement, having made no further payments since 15 October 2025.
6. On 30 September 2025, Mr Greenwood passed away.
7. Mrs Greenwood is named as executor in Mr Greenwood's last will dated 21 September 2000 (Will).
8. On 28 November 2025, Mrs Greenwood advertised her intention to apply for probate in respect of the Estate.
9. On 5 December 2025, genU filed the Summons.
10. On 16 December 2025, Burgess JR held a directions hearing and made the following orders:
    1. To the extent it is necessary to do so, the proceeding be reinstated for the limited purposes of hearing and making orders on the Summons.
    2. By 4:00PM on 30 January 2026, the Defendants and the executor of the Estate of the Third Defendant, Ms Pauline Anne Greenwood, file and serve any affidavit material in response to the Summons.
    3. By 4:00PM on 13 February 2026, the Plaintiff is to file and serve any responsive affidavit material in support of the Summons.
    4. The Summons be listed for hearing on 17 February 2026 at 2:15pm before the Honourable Associate Justice Ierodiaconou.
    5. Costs reserved
11. The orders recorded the following in 'other matters':

1. By summons filed on 5 December 2025 (Summons), the Plaintiff seeks entry of default judgment against the Defendants on the basis that the Defendants have defaulted in payment of the settlement sum in accordance with the parties' settlement deed signed in June 2025. 2. At the hearing on 16 December 2025, the Plaintiff pressed for the making of the orders sought in the Summons on the basis that the Defendants had irrevocably consented to such orders in the event of any default in payment of the settlement sum.

1. The First Defendant confirmed at the hearing that they did not consent to the making of those orders. The Second Defendant neither consents to nor opposes the application. In the absence of confirmed consent by all parties to the proposed orders, the Court did not accept that the power of a Judicial Registrar to make those orders 'by consent' was enlivened, and a timetable was made for hearing of the application before an Associate Justice.

1. On 27 December 2025, the final instalment of $1,500,000 was due under the Settlement Agreement.
2. On 11 February 2026, Mrs Greenwood applied for a grant of probate of the Will of Mr Greenwood.
3. On 16 February 2026, I directed that the parties file and serve an outline of submissions of no more than five pages on or before 17 February 2026 at 9:30 am.
4. On 16 February 2026, Moore J made orders pursuant to r 77.05 of the Rules that the hearing of the Summons be referred to an Associate Judge for hearing and determination.
5. On 17 February 2026, genU and the second and third defendants, respectively, each filed submission in relation to the Summons. Mr Nguyen did not file any submissions.
6. On 17 February 2026 at 2:15 pm, the Summons came on for hearing before me.
7. Mr Nguyen was present in the gallery of the court during the hearing but did not seek to make any submissions.

1. Mr Evans, solicitor for genU, sets out the background facts and the relief sought by genU in his affidavit. He deposes to the following:

(a) he understands that no application for a grant of probate has been made, but notes Mrs Greenwood's advertisement of her intention to do so;

(b) both Mrs Greenwood and David Greenwood, who is the son of Mrs Greenwood, are directors of ROM;

(c) he sets out the payments made, and default, under the Terms of Settlement. Mr Evans refers to the charge given by Mr Greenwood over the Charged Properties;

(d) he sets out what encumbrances are recorded on the title to the Charged Properties: Rodney Rd - no encumbrances; Pilrig Ave - a registered mortgage in favour of Commonwealth Bank of Australia (CBA) and a caveat in favour of Samantha Tench and Mr Nguyen; and Westlakes Bvd and Bond St - registered mortgage in favour of the National Australia Bank (NAB); and

(e) subpoenas issued to the CBA and NAB reveal that the amounts owing under the mortgages were $2,294,035.72, and $6,719.19, respectively.

1. In Mrs Greenwood's affidavit filed on her own behalf and on behalf of ROM, she deposes to the following:

(a) she is the executor named in the Will of Mr Greenwood, his widow, and a director of ROM;

(b) she has instructed her solicitors to prepare an application for probate, but has not received all of the information required to complete the inventory of assets and liabilities. Delay has been occasioned gaining access to Bankwest accounts. She expects to receive that information within five business days, and then can file an application for probate a few days after that;

(c) she sets out her understanding as to the ownership of the Charged Properties;

(d) she opposes the appointment of a receiver to the Estate Properties. She says Mr Nguyen and his wife, Samantha Tench, currently occupy Pilrig Ave. She annexes appraisals of Bond St and Pilrig Ave, which records estimate values of $1,300,000-$1,400,000 and $3,200,000-$3,500,000, respectively. She states her intention to take steps to immediately sell the Estate Properties once probate is granted;

(e) she opposes the appointment of a receiver to the Trust Properties. She notes that only the trustee of the Trust can deal with those properties. Upon the grant of probate, she will instruct her accountant to prepare a deed of appointment for the purpose of appointing her son, Andrew Greenwood, as replacement trustee of the Trust. She will instruct Andrew Greenwood to take immediate steps to sell one or both of the Trust Properties and to apply the proceeds in accordance with the Settlement Agreement. She annexes an appraisal for Rodney Rd, which records an estimated value of $1,200,000;

(f) as executor of the Estate, she is ready, willing and able to:

(i) execute a deed of appointment of trustee to appoint a new trustee to the Trust;

(ii) appoint an agent to market and sell the Estate Properties;

(iii) do all things necessary to assist the Trust in appointing an agent to market and sell the Trust Properties; and

(iv) apply the proceeds of the sale of the Estate Properties and procure the trustee of the Trust to apply the proceeds of the sale of the Trust Properties in accordance with the Settlement Agreement.

1. Ms Lingard has filed an affidavit deposing to the following:

(a) on 11 February 2026, she caused to be filed on behalf of Mrs Greenwood an application for a grant of probate of the Will of Mr Greenwood;

(b) a certified copy of the death certificate of Mr Greenwood dated 20 October 2025 was filed with the probate application;

(c) as informed by Mrs Greenwood, she believes the Westlakes Bvd property was purchased by Mr Greenwood in his capacity as trustee of the KR Greenwood Trust pursuant to a contract of sale dated 16 December 2023 for the price of $1,430,000, of which settlement occurred in February 2024; and

(d) she understands the Westlakes Bvd property to be the family home.

1. There is evidence (of varying quality and currency) concerning the value of the Charged Properties and encumbrances on the title to the properties as follows:

Caveat in favour of Mr Nguyen and Ms Tench who claim an interest by way of 'implied, resulting or constructive trust' (Caveat)

1. In the Summons, genU sought orders under r 16.03(1)(b) of the Rules for the appointment of Mrs Greenwood or David Greenwood to represent the Estate for the purpose of the proceeding. Alternatively, it sought orders pursuant to r 16.03(1)(a) of the Rules that the Court proceed in the absence of a person to represent the Estate.

(1) Where a party to a proceeding dies, but the cause of action survives, or where a party becomes bankrupt, the proceeding shall not abate by reason of the death or bankruptcy, but may be carried on in accordance with paragraph (2).

(2) Where at any stage of a proceeding the interest or liability of any party is assigned or transmitted to or devolves upon some other person, the Court may order -

(a) that the other person be added as a party to the proceeding or made a party in substitution for the original party; and

(b) that the proceeding be carried on as so constituted.

...

(1) Where a deceased person was interested, or the estate of a deceased person is interested, in any question in a proceeding and the deceased person has no personal representative, the Court may -

(a) proceed in the absence of a person to represent the estate of the deceased; or

(b) by order (with the consent of the person appointed) appoint a person to represent the estate for the purpose of the proceeding.

(2) An order under paragraph (1), and any judgment or order subsequently given or made in the proceeding, shall bind the estate of the deceased person as it would had a personal representative of the deceased been a party.

(3) Before making an order under this Rule, the Court may require notice of the application for the order to be given to any person having an interest in the estate.

1. At the commencement of the hearing on 17 February 2026, I made orders pursuant to r 16.03(1)(a) of the Rules that the application proceed in the absence of a person to represent the Estate. The circumstances were that Mrs Greenwood, as executor named in the Will, had applied for the grant of probate, but her application would not be resolved for a number of weeks. While Mrs Greenwood had filed evidence and submissions opposing the application for the appointment of a receiver in her capacity as executor, she did not formally give her consent to an order being made under r 16.03(1)(b) of the Rules appointing her to represent the Estate. She neither consented to nor opposed the application for orders under r 16.03. In making those orders, I followed the decision in Bolitho v Banksia Securities Ltd (No 15)[1] and Yap v Lee (No 2)[2] in proceeding on the basis that r 16.03, and not r 9.09(2), of the Rules applied until such time as probate is granted.
2. On 20 February 2026, the Court of Appeal handed down judgment in Lee v Yap.[3] The effect of that decision is that a person becomes a 'personal representative' of a deceased person at the time they 'accept the office [of executor], either expressly or by conduct' and that r 16.03 does not apply from the point at which a person becomes a 'personal representative'.[4]
3. By her actions, Mrs Greenwood has plainly accepted the office of executor and therefore becomes a 'personal representative' for the purposes of the Rules. In those circumstances, and with the consent of the parties including Mrs Greenwood, on 25 February 2026, I made orders as follows:

(1) Pursuant to rule 9.09(2)(a) of the Rules, Ms Pauline Greenwood, in her capacity as personal representative of the Estate of Mr Keith Greenwood, is made a party to the proceeding in substitution for the third defendant.

(2) Pursuant to rule 9.09(2)(b) of the Rules, the proceeding be carried on as so constituted.

(3) Pursuant to rule 9.09(3) of the Rules, the plaintiff is not required to personally serve this order or the proceeding's originating process on Ms Pauline Greenwood.

1. The next issue that arises is whether it is appropriate for genU to proceed using the summary procedure for enforcement of the Settlement Agreement.

1. In Roberts v Gippsland Agricultural & Earth Moving Contracting Co Pty Ltd,[5] Smith J described the summary procedure for enforcement of a compromise:[6]
   1. The Court would ordinarily leave a party to proceed by separate bill if the agreement involved matters extraneous to the suit compromised. And it regarded an agreement as falling within this general category, (i) if it dealt with property as to which no question was raised in the suit, or (ii) if it provided for things to be done which went beyond the ordinary range of what the Court would order in such a suit, or (iii) if its enforcement involved giving effect to equities of a different nature from those involved in the suit, or (iv) if there were parties to the agreement who were not parties to the suit.
   2. On the other hand in cases not falling within this first general category the Court would ordinarily enforce the agreement in the suit compromised. In particular this was so if the agreement related solely to the conduct or prosecution of that suit, or to the staying or dismissal thereof, or to the granting of the whole or part of the relief claimed therein or to the doing of that which the suit was brought to enforce.
   3. For the purpose of deciding which of these two general categories a case fell within, the Court did not look merely at the particular obligations sought to be enforced. It looked also at the obligations of the applicant, so far as justice required that the application should not be granted without ensuring that they too would be performed. But it would disregard altogether obligations already fully performed. It may be observed that in order to ensure the performance of obligations by the applicant the Court could make an order conditional upon such performance.
   4. If there was a substantial question to be determined as to what were the terms of the agreement, or as to whether it was valid or specifically enforceable, as for example where a substantial case was put forward of material mistake or of other circumstances such as would afford a defence to a suit for specific performance, a party would ordinarily be left to proceed by separate bill so that the matters raised might be fully investigated.
   5. The fact that the only outstanding obligation under the agreement of compromise was one for the payment of an ascertained sum of money did not preclude the Court from enforcing the agreement in the suit.
2. Smith J also held that in determining whether justice can be done under the summary procedure, the Court must consider a variety of matters involving questions of degree. Those matters include the extent to which extraneous matters are involved, how substantial are the questions to be determined, to what extent questions of credibility are likely to arise, and whether pleadings and discovery are desirable.
3. In Seachange Management Pty Ltd v Pital Business Pty Ltd,[7] Maxwell P and Nettle JA discussed the exercise of the power of summary enforcement of a compromise:[8]

In summary, therefore, the net effect of the authorities to this point seems to be that, although the power summarily to enforce a compromise is discretionary and is wider now than once was the case, it is not to be invoked unless the court is 'clearly satisfied that justice can be done'; and whether justice can be done is a question of degree. Consistently with the equitable origins of the power, one must weigh among other competing considerations the extent to which enforcement would involve extraneous matters, how substantial the questions to be determined as a precursor to enforcement may be, and procedural considerations like the desirability of pleadings and discovery and substantial cross-examination.

1. Clause 2.2 of the Settlement Agreement provides:

Settlement Sum

The parties acknowledge and agree that:

(a) the Defendants will pay the Settlement Sum to genU as follows:

(i) the amount of $1,400,000 to be paid within 14 calendar days of the Execution Date;

(ii) the amount of $3,000,000 to be paid within 90 calendar days of the Execution Date; and

(iii) the amount of $1,500,000 to be paid within 6 months of the Execution Date;

...

(d) the Defendants will each be jointly and severally liable for the full amount of the Settlement Sum.

1. Clause 2.3 of the Settlement Agreement provides:

Interest on unpaid amounts

The parties agree that if any portion of the Settlement Sum is not paid within the time provided for in clause 2.2(a), the interest will accrue on any unpaid balance:

(a) from the date on which the unpaid balance fell due for payment; and

(b) at the penalty interest rate applicable from time-to-time in Victoria.

1. Clause 2.5 of the Settlement Agreement provides:

Freezing Orders and Proceedings

The parties agree that:

(a) genU will provide consent pursuant to the Freezing Orders to enable payment of the first instalment of the Settlement Sum provided for in clause 2.2(a);

(b) within 2 business days of the payment of the first instalment of the Settlement Sum provided for in clause 2.2(a), the parties will each (through their solicitors) jointly seek orders in the Proceeding by consent to the effect that:

(i) the Freezing Orders be released;

(ii) the Proceeding be dismissed with a right of reinstatement; and

(iii) all existing costs orders in the Proceeding be vacated and there be no further order as to costs; and

(c) the Plaintiff will do all the things reasonably necessary to remove all caveats over the Defendant Properties upon receipt of the Settlement Sum in full.

1. Clause 5.1 of the Settlement Agreement provides:

Judgment on default

If the Defendants do not for any reason pay all or any part of the Settlement Sum within the time provided for in clause 2.2(a) above, then:

(a) the Defendants will be in default of their obligations under this Agreement;

(b) genU will be entitled to immediately and without prior notice to the Defendants make an application in the Proceeding to:

(i) enter judgment in the Proceeding against each of them for:

(A) the outstanding balance of the Settlement Sum;

(B) any interest accrued on the outstanding balance of the Settlement Sum in accordance with clause 2.3 above; and

(C) costs of entering judgment for that amount on an indemnity basis.

(c) the Defendants will irrevocably consent to:

(i) any application made by genU on the terms set out in subclause 5.1(b) above;

(ii) genU relying on a solicitors affidavit which annexes a copy of this Agreement and deposes to the fact of the default and the outstanding balance of the Settlement Sum as conclusive evidence of:

(A) its entitlement to the relief sought in any such application; and

(B) the Defendants' consent to any such application.

(d) the Defendants will not take any steps to defend or hinder any application made by genU on the terms set out in subclause 5.1(b) above.

1. The question of 'whether to apply the summary procedure involved a question of degree, engaging considerations of whether justice could be done in that process.'[9] In my opinion, it is appropriate for genU to use the summary procedure for enforcement of a compromise:

(a) the Settlement Agreement makes provision for the reinstatement of the proceeding (which has occurred) in the event of default and for the entry of judgment for the outstanding balance of the Settlement Amount;

(b) while ROM and Mrs Greenwood, as executor of the Estate, oppose the orders for the appointment of a receiver to the Charged Properties, they do not oppose the entry of judgment for the debt owing under the Settlement Agreement. Mr Nguyen did not oppose the relief sought by genU;

(c) there does not appear to be any substantial contest as to facts, such as the amount of the debt or the existence of the security. The dispute appears to be narrowly focussed on the exercise of the discretion to appoint a receiver, a matter that is appropriately resolved by way of the summary procedure;

(d) the filing of a new proceeding would add unnecessary delay and expense; and

(e) in short, I am 'satisfied that justice can be done' between the parties by the use of the summary procedure.

1. I am satisfied on the evidence before me that the Settlement Agreement was entered into between genU, Mr Nguyen, ROM and Mr Greenwood, that there has been default under the Settlement Agreement, and that the principal amount of $3,500,000 is owing under the Settlement Agreement together with interest that has accrued on the outstanding balance of the Settlement Sum. Judgment for debt is not opposed by ROM or Mrs Greenwood. It is appropriate that judgment be entered against the defendants for the amount owing.

1. The next issue that arises is whether it is appropriate to appoint a receiver to the Charged Properties.

1. Section 37 of the Supreme Court Act provides:

(1) The Court may by order, whether interlocutory or final, grant an injunction or appoint a receiver if it is just and convenient to do so.

(2) An order made under subsection (1) may be made either unconditionally or on such terms and conditions as the Court thinks just.

(3) The Court may grant an interlocutory injunction under subsection (1) restraining a party to a proceeding from removing from Victoria or otherwise dealing with assets located within Victoria, whether or not that party is domiciled, resident or present within Victoria.

(1) The Court may appoint a receiver at any stage of a proceeding or, in the circumstances referred to in Rule 4.08, before the commencement of a proceeding.

(2) In an urgent case, the Court may appoint a receiver on application made without notice.

1. In Morris Finance Ltd v Brown,[10] the Full Court of the Federal Court explained the nature of an equitable charge and the remedies available to a charge holder:[11]

Apart from statutory charges, charges are creatures of equity and enforceable only in equity... An equitable charge usually arises by agreement between the parties under which the property charged is made liable for or is "appropriated" to securing the performance or discharge of the relevant contractual obligation. In relation to the charged property, there is no transfer of title or any possessory interest conferred by an equitable charge, although an order for possession may be a necessary adjunct to an order for sale if the equitable charge is sought to be enforced. Moreover, unlike a mortgage, there is no right or power of foreclosure.... The principal right or remedy of the chargee to enforce its equitable charge is by a judicial order for sale (with an ancillary order for possession) or the appointment of a receiver... The chargee has no self-help remedy ... but must obtain the assistance of a court of equity to realize or enforce the charge. Usually, upon default a chargee is entitled to an order for sale, although given that an equitable jurisdiction is being invoked there may be discretionary aspects to the exercise of that jurisdiction. We have described a court's power to order a sale (including any ancillary orders) to enforce an equitable charge as being in the court's equitable jurisdiction, although such a jurisdiction may be supplemented by the conferral of other statutory powers.

1. In Hycenko v VHY Enterprises Pty Ltd,[12] Derham AsJ set out the applicable law so far as it concerns the nature and enforcement of an equitable charge. His Honour identified that an equitable charge can be enforced by application to a court for an order for judicial sale of the charged property, or the appointment of a receiver. In relation to the remedy of an order for judicial sale, his Honour stated:[13]

Subject to specific rules of court to the contrary, it is a fundamental requirement for the exercise of a court's powers to order a judicial sale that a person whose rights will be affected by the order should be a party to the proceeding. That is because the court does not take away property rights of a person, without specific statutory authority, in proceedings to which that person is not a party. If a prior mortgagee or incumbrancer does not consent to the judicial sale, then ordinarily the sale will be subject to payment out of its mortgage or incumbrance. Further, an order for sale obtained by a second mortgagee or chargee does not prevent a sale by a first mortgagee who is not a party to the action.

2. In Re Jacks Corner (in liq) (Jack's Corner),[14] Williams J considered the question of whether liquidators should be appointed as receivers of trust property for the purpose of realising the company's right of indemnity in a context where the property was subject to a registered mortgage. In the course of making the appointment, her Honour stated:[15]

...I was initially troubled by the effect of appointing receivers with a power of sale in respect of the Property, in circumstances where that Property is subject to a registered mortgage, having regard to the learned judgment of Campbell J (as his Honour then was) in King Investment Solutions v Hussain concerning the matters that arise for consideration on an application by an unregistered second mortgagee or equitable chargee for an order for judicial sale of a property that is subject to a registered first mortgage.

However, the Defendants do not seek an order for judicial sale that would permit the Liquidators to sell the Property as equitable chargees. The Defendants seek an order for the appointment of the Liquidators as receivers and managers with powers equivalent to those set out in s 420 of the Corporations Act, including a power to enter into possession and take control of the Trust assets, and a power to sell those assets. As counsel for the Defendants submitted, those powers would not affect any rights of any other person in respect of the Trust assets. Receivers and managers appointed by the Court by way of enforcement of the former trustee's right of indemnity that has vested in the Liquidators would be officers of the Court, empowered to get in and sell the Trust assets for the benefit of all persons with an interest in the assets. Those persons include the mortgagee, the Company (to the extent of its right of indemnity as former trustee that has vested in the Liquidators), and the beneficiaries of the Trust whose claim on the Trust assets is subject to the rights of indemnity of the former and current trustees. The orders sought by the Defendants would not empower the proposed receivers and managers to terminate the mortgagee's interest in the Property. The receivers and managers would be unable to complete any contract for sale of the Property unless the mortgage was discharged. The receivers and managers would be unable to procure the discharge of the mortgage unless they were in a position to pay to the mortgagee out of the sale proceeds a sum sufficient to repay the debt secured by the mortgage, or such other sum as the mortgagee may agree. On reflection, I consider that these are important distinctions between orders appointing receivers and managers with a power of sale by way of enforcement of the former trustee's right of indemnity, on the one hand, and orders for judicial sale at the suit of an equitable chargee, on the other hand. I accept that an order appointing the Liquidators as receivers and managers in this case would not affect the rights of the mortgagee so as to require it to be a party to these proceedings. The Defendants accept that any order appointing receivers and managers should expressly acknowledge the mortgagee's interest in the Property and require the proceeds of sale of the Property to be applied first in the discharge of the registered mortgage.

1. In Siamidis v Siamidis,[16] Delaney J discussed the discretion to appoint a receiver to property in the context of an interlocutory application to enforce security where parties to a deed of settlement had failed to comply with obligations to ensure the expeditious sale of properties:[17]

The correct approach to the present application is to apply the language of s 37(1), to consider whether it is 'just and convenient' to appoint receivers to sell the properties referred to in paragraph 15 having regard to the court's obligation to give effect to the overarching purpose in s 8(1) of the CPA. The statutory obligation in s 8(1) of the CPA is an obligation that was not in existence at the time of the decision of the Full Court in Bond Brewing or at the time of the decisions of Warren J in Martyniuk and Yunghanns. As French J observed in University of Western Australia v Gray (No 6), it is important that the discretion to appoint a receiver not be unnecessarily confined by any particular line of cases in which it has been applied.

I nonetheless proceed on the basis that it is important to approach an application such as the present with caution. I accept that a proper case, by which I mean as Warren J referred in Martyniuk, a strong case for the appointment must be made out.

1. In Siamidis v Siamidis,[18] the Court of Appeal refused to grant leave to the applicant to appeal from Delaney J's decision to appoint a receiver in the context where the parties had failed to comply with their obligations to ensure the expeditious sale of properties under a deed of settlement:[19]

... The notion that a receiver is appointed to protect or preserve property does not mean that the receiver must hold the property so as to preserve it intact. It is commonplace to arm a receiver with the power of sale, and it may be, as it is in this case, that the critical interest of the parties is not retaining property but realising its value by sale and then distributing the proceeds. In that context, deferring the sale was inconsistent with the bargain in the Deed.

It was therefore not to the point that the judge made no findings that the trusts were being mismanaged, that five of the Properties were vacant, or that delay was affecting the value of the Properties in a way that amounted to waste. Preservation and protection of the Properties was not the judge's focus. Rather, the orders were directed to preserving and protecting the benefit of the parties' agreement set out in the Deed.

1. In National Australia Bank v Redside Pty Ltd,[20] Osborne J explained what the words 'just and convenient' in s 37 of the Supreme Court Act mean:[21]

The words 'just or convenient' mean 'where it is practicable, and the interests of justice require it'. The Court's power to appoint a receiver is construed broadly and must be exercised with a view to all the circumstances of the case. The power includes the power to appoint a receiver and manager.

1. Clause 3.2 of the Settlement Agreement provides:

Charge

By entering into this Agreement the Defendants each independently and irrevocably grant a charge over the Defendant Properties in favour genU as security for the Defendants' obligations to pay the Settlement Sum (and any interest accrued on the Settlement Sum).

1. Clause 3.3 of the Settlement Agreement provides:

Caveats

To secure the Defendants' obligations to pay the Settlement Sum (and any interest accrued on the Settlement Sum), the parties agree that:

(a) the Defendants irrevocably consent to genU at its own cost lodging caveats over the Defendant Properties;

(b) to the extent the Defendants intend to sell any of the Defendant Properties in accordance with clause 3.1 above, then:

(i) the Defendants will provide to genU (through its solicitors) written notice of the date of settlement of any such sale and such particulars of the proposed sale that genU reasonably requests to satisfy itself that the proposed sale will be conducted in compliance with clause 3.1 above;

(A) the Defendant providing any particulars reasonably requested by genU in accordance with subclause 3.1(b) above;

(B) genU being reasonably satisfied that the proposed sale will be conducted in compliance with clause 3.1(a) above; and

(C) to the extent the proposed sale is to proceed by way of PEXA settlement, genU being reasonably satisfied that the proceeds of the sale will be immediately distributed from the PEXA settlement in compliance with clause 3.1(a) above; and

genU will do all things reasonably necessary to provide consent to the sale or withdraw any caveats which would prevent the sale (including by participating as a third party caveator in any settlement of the sale as may be required); and

(c) genU will otherwise withdraw any caveats lodged by it in accordance with subclause 3.3(a) above within 7 calendar days of the full payment of the Settlement Sum and at its own cost.

1. Clause 5.2 of the Settlement Agreement provides:

Security to survive default

For the avoidance of doubt, in the event that genU enters judgment against any or all of the Defendants pursuant to clause 5.1(b) above:

(a) the charge granted by the Defendants pursuant to clause 3.2 above will operate as security for payment of judgment entered by genU; and

(b) genU will be entitled to lodge and maintain caveats pursuant to clause 3.3(a) to secure payment of judgment entered by genU.

1. Clause 7.2 of the Settlement Agreement provides:

Further Acts

Each party agrees to promptly do all necessary further acts to reasonably perform their obligations under this Agreement and to give full effect to its terms.

1. An equitable charge may only be enforced by judicial order for sale or by order for the appointment of a receiver to the charged property.
2. I am satisfied that the Charged Properties are charged in favour of genU as security for payment of the Settlement Sum plus interest. The formal requirements for the creation of an equitable charge are established.[22]
3. I was initially concerned that the NAB and CBA, as mortgagees of some of the Charged Properties, might be necessary parties to the proceeding, but for reasons given by Williams J in Jack's Corner that are reproduced above, I accept that an order appointing receivers would not affect the rights of the mortgagee so as to require them to be parties to these proceedings.
4. The question of whether a receiver ought to be appointed for the sale of the Charged Properties involves the exercise of a discretion. Closely related to that discretion, is the discretion to adjourn all or part of the proceeding to a later date. The test is whether it is 'just and convenient' to make orders for the appointment of a receiver.
5. Mrs Greenwood and ROM contend the orders ought not be made, to allow time for the grant of probate, a necessary precursor to Mrs Greenwood selling the Estate Properties, and a necessary precursor to the appointment of Andrew Greenwood as trustee of the Trust, so that he can sell either or both of the Trust Properties. They contend that a grant of probate will be made in a period of four to six weeks. They claim that appointment of a receiver to the Charged Properties is an unnecessary and expensive step. They claim that Mrs Greenwood has acted promptly in relation to seeking a grant of probate. They note that there is significant equity in the properties, and that genU has caveats which protect its security interests.
6. Approaching the matter with caution, I consider that it is 'just and convenient' in all of the circumstances to appoint a receiver to the Charged Properties without security.[23] I consider that provision of time to Mrs Greenwood to take steps to facilitate a sale would not 'adequately' address the matters raised by genU. A strong case for appointment has been made out:

(a) first, there has been a clear default under the Settlement Agreement, and that default has persisted in relation to the second instalment, since 25 September 2025. The amount owing is significant. It was open to the parties to the Settlement Agreement to procure the sale of the Charged Properties prior to the default occurring;

(b) second, by cl 7.2 of the Settlement Agreement, the parties agreed to 'promptly do all necessary further acts to reasonably perform their obligations under this Agreement and to give full effect to its terms'. The appointment of a receiver is consistent with the parties' obligation to give effect to the terms of the Settlement Agreement;

(c) third, the Settlement Agreement provides for the Charged Properties to be charged with payment of the Settlement Sum, and while there is no contractual agreement to the appointment of a receiver, appointment by the Court is one of recognised avenues for enforcement of an equitable charge;

(d) fourth, while the existence of caveats over the Charged Properties provides some measure of protection to genU, the appointment of a receiver will afford a greater degree of protection to ensure that the security is not at risk, particularly in circumstances where the registered proprietor of the properties is deceased and there is presently no grant of probate or trustee of the Trust;

(e) fifth, a period of around four and a half months has elapsed since Mr Greenwood's death, which was a window of time in which a grant of probate could have occurred - accepting that Mrs Greenwood has encountered some difficulty in preparing an inventory;

(f) sixth, allowing a period of four to six weeks for the grant of probate to Mrs Greenwood would lead to a more uncertain outcome from the perspective of genU - particularly in relation to the timing of repayment of the Settlement Sum;

(g) seventh, it is desirable that a professional and independent person have the conduct of the sale, noting that there may be choices as to which of the Charged Properties need to be sold and action required with respect to the Caveat. I accept and have regard to the fact that the cost of the receiver will be an expense that is likely to be recouped out of the properties; and

(h) eighth, while there is some evidence as to the value of the Charged Properties and their encumbrances, the quality of that evidence, inherent limitations on valuation and estimation, and uncertainty as to what issues may arise in the future to erode the value of the Charged Properties are such that the available equity cannot be estimated with confidence.

1. genU seeks an order that the defendants, jointly and severally, pay the plaintiff's costs of the application on an indemnity basis in accordance with cl 5.1(b)(i)(C) of the Settlement Agreement.

1. Section 24 of the Supreme Court Act provides:

(1) Unless otherwise expressly provided by this or any other Act or by the Rules, the costs of and incidental to all matters in the Court, including the administration of estates and trusts, is in the discretion of the Court and the Court has full power to determine by whom and to what extent the costs are to be paid.

(2) Nothing in this section alters the practice in any criminal proceeding.

1. In Copper (Qld) Investment Pte v Hallion (No 2),[24] the Court of Appeal noted the relationship between the curial power to award costs and a contractual right to costs:[25]

... are in the discretion of the Court in any given case. If the Court finds that nothing is in fact owing under the mortgage then, ordinarily, the mortgagee will be required to pay the mortgagor's costs. However, there may be cases where a successful mortgagor will be required to pay the costs of an entirely unsuccessful mortgagee. Finally, the court will ordinarily exercise its discretion to reflect any contractual right to costs.

1. Clause 5.1(b)(i)(C) of the Settlement Agreement provides:

If the Defendants do not for any reason pay all or any part of the Settlement Sum within the time provided for in clause 2.2(a) above, then:

...

(b) genU will be entitled to immediately and without prior notice to the Defendants make an application in the Proceeding to:

(i) enter judgment in the Proceeding against each of them for:

(C) costs of entering judgment for that amount on an indemnity basis.

1. In my opinion it is appropriate, in the exercise of my discretion, to order that the defendants, jointly and severally, pay the costs of and incidental to the Summons on an indemnity basis in accordance with cl 5.1(b)(i)(C) of the Settlement Agreement. I have not identified any circumstance that would render it appropriate to order costs on a basis other than one that reflects genU's contractual entitlement to costs. Neither Mrs Greenwood nor ROM opposed that order being made.

1. In the premises, I am satisfied that it is appropriate for genU to use the summary procedure for the enforcement of the Settlement Agreement and for judgment to be entered against the defendants, jointly and severally, for the amount owing under the Settlement Agreement including interest. I will allow the parties to confer as to the interest calculation. I am also satisfied that it is appropriate to appoint a receiver to the Charged Properties without security. Finally, I am satisfied that it is appropriate that the defendants pay genU's costs of and incidental to the Summons, including reserved costs, to be taxed on an indemnity basis.
2. I shall make orders 2 to 4 in the form submitted to my chambers by genU, with the title details to Pilrig Ave corrected. I will leave it to the parties to confer as to the exact amount of interest and to advise my chambers of that amount.

BASSWOOD NOMINEES PTY LTD (TRADING AS RYRIE OFFICE MACHINES) (ACN 006 029 063) IN ITS

OWN CAPACITY AND AS TRUSTEE OF THE BASSWOOD UNIT TRUST

[1] [2020] VSC 725, [17] (John Dixon J).

[2] [2024] VSC 730, [186] (Waller J).

[3] [2026] VSCA 20.

[4] Ibid (Emerton P, Walker and Richards JJA).

[5] [1956] VLR 555.

[9] Barratt v Rees (2014) 13 ASTLR 99.

[10] [2017] FCAFC 97; (2017) 252 FCR 557.

[11] Ibid 568 (emphasis added, citations omitted) (Beach, Markovic and Moshinsky JJ).

[12] [2020] VSC 834.

[13] Ibid [33]-[49] (emphasis added).

[14] [2023] NSWSC 1340.

[15] Ibid [77]-[78] (emphasis added, citations omitted).

[16] [2025] VSC 228.

[17] Ibid [82]-[83] (citations omitted).

[18] [2025] VSCA 230.

[19] Ibid [60]-[61] (emphasis added).

[20] [2023] VSC 145.

[22] Morris Finance v Commonwealth Bank of Australia [2017] VSC 260, [32] (Derham AsJ).

[23] See Re Vines (as trustee of Bankrupt Estate of Mitchell) [2024] FCA 1276, [67] (Feutrill J).

[24] [2025] VSCA 338.

[25] Ibid [36] (Beach JA, Walker JA, Kenny JA).