Plaintiff v Defendant

1. The plaintiff, National Australia Bank Limited ('NAB'), commenced this proceeding by writ dated 6 September 2023, seeking various orders against the defendant, Mr Anthony Gleeson, including for payment of debts under various facilities and possession of four titles[1] comprising the land situated at 1488 Cullens Road, Molka, Victoria ('Molka property'). Following the close of pleadings, the parties and their legal advisers attended a judicial mediation on 27 June 2024 and entered into a deed of settlement on 2 July 2024 ('deed of settlement' or 'deed'). NAB contends that Mr Gleeson has not fully complied with his obligations under the deed of settlement.
2. Now before the Court is an amended summons filed by NAB on 31 October 2025 ('amended summons' or 'application'), seeking:

(a) summary enforcement of the deed of settlement pursuant to the Court's inherent jurisdiction;

(b) alternatively, summary judgment under ss 61 and 63 of the Civil Procedure Act 2010 (Vic) ('CPA');

(c) an order for the delivery up of possession of the Molka property;

(d) an order that the defendant pay the sum of $328,705.68 as at 31 October 2025; and

(e) interest on the judgment amount at a rate of 10% per annum from the date of judgment until the date of payment.

1. The amended summons was listed for final hearing on 19 November 2025. Following an exchange with the parties at the commencement of the hearing, I considered that the course most consistent with the overarching purpose in s 7 of the CPA to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute, was to first determine the application for summary enforcement of the deed and to adjourn the summary judgment aspect of NAB's application. I indicated that I would only hear from the parties on the summary judgment aspect if the summary enforcement application was unsuccessful.

1. Clause 5.1(2) of the deed of settlement relevantly provided Mr Gleeson around five and a half months (from the date of the deed) to pay to NAB an agreed settlement amount of $925,000 (inclusive of GST) ('settlement amount') by 15 December 2024 (or such later date as agreed by NAB in writing) either by:

(a) entering into an unconditional contract of sale of the titles comprising the Molka property, being volume 06142 folio 359 (referred to in the deed as the 'Southern Lot') for a purchase price sufficient to cover the settlement amount in full (after any sale costs) (cl 51(2)(a)) and with such settlement to occur by no later than 27 March 2025; or

(b) obtaining an unconditional offer of refinance for an amount sufficient to pay the settlement amount (sl 5.1(2)(b)), such refinance to occur by no later than 31 January 2025; or

(c) otherwise paying the settlement amount (cl 5.1(2)(c)).

1. Further, cl 5.1(3) of the deed required Mr Gleeson to provide NAB with a copy of any contract of sale, any offer of refinance, or payment of the settlement amount, by 15 December 2024.
2. Clause 4 provided that '[u]nless otherwise agreed by NAB in writing...the [s]ettlement [a]mount must be paid to NAB by no later than 4:00pm on 27 March 2025 via PEXA'. Clause 8.1 of the deed further provided that if Mr Gleeson defaulted on his obligation to pay the settlement amount by the relevant time, after first issuing Mr Gleeson with a notice of default and providing him 14 days to remedy the default, if the default remained unremedied, NAB would be entitled to file a pre-signed consent judgment ('consent judgment'). The consent judgment is attached to the deed signed by both parties through their respective solicitors (Mr Gleeson being represented at this time) and is in the following terms:

(a) the defendant pay an amount equal to the amount owing under the deed of settlement, as deposed to in an affidavit of the plaintiff's solicitor;

(b) there be judgment for the plaintiff for possession of the whole of the land described in certificates of title volume 06142 folio 359, volume 06252 folio 385, volume 11306 folios 813 and 814, being the Molka property; and

(c) the defendant pay the plaintiff's costs of entering judgment fixed in the sum of $2,000.

1. By cl 8.2(1) of the deed of settlement, Mr Gleeson covenanted not to take any steps to oppose, defend, hinder or obstruct the consent judgment which may be filed in this proceeding.
2. In the event, Mr Gleeson defaulted under the deed of settlement and NAB served him with a notice of default by email on 3 January 2025 ('notice of default'). The notice of default identified Mr Gleeson's failure to do any of the things contemplated by cl 5.1(2) of the deed by 15 December 2024 and required that the default be remedied within 14 days. By email dated 16 January 2025 from NAB's solicitors, Norton Rose Fulbright Australia, NAB granted Mr Gleeson an extension to 24 January 2025 to remedy the default, 'subject to NAB receiving $50,000 in part payment' of the settlement amount into a nominated bank account the same day ('16 January 2025 email'). That amount was paid by Mr Gleeson on 16 January 2025 via bank transfer. In addition, on 28 January 2025, NAB received two further part payments of the settlement amount, totalling $546,194.32 via bank transfer. The balance of the settlement amount, then in the sum of $328,805.68, remained unpaid as at 24 January 2025.
3. On 21 February 2025, NAB submitted to the Court the consent judgment, together with the then confidential affidavit of Stephanie Trajcevska sworn 21 February 2025 in support.[2] In response to an inquiry from the Court, NAB filed the affidavit of Steven Palmer affirmed 12 March 2025, evidencing NAB's legal costs in the matter. Also on 13 March 2025, NAB's solicitors were advised by Mr Gleeson's solicitors that they were no longer acting in the proceeding. A notice of ceasing to act was filed the same day.
4. On 18 March 2025, the Associate to McCann JR requested that the parties provide an updated signed consent judgment because the document had been signed by Mr Gleeson's former solicitors.
5. It seems that NAB did not wish to proceed with the consent judgment in circumstances where Mr Gleeson was unrepresented. Accordingly, on 2 April 2025, the plaintiff notified the Court that it withdrew its application for consent judgment. NAB's solicitors wrote to Mr Gleeson stating that NAB agreed to forbear from enforcing judgment or exercising its rights under the deed of settlement until 5:00pm on 2 May 2025 to enable Mr Gleeson to obtain legal representation. Mr Gleeson did not respond.
6. On 30 May 2025, NAB's solicitors again wrote to Mr Gleeson. In that correspondence they summarised the terms of the deed of settlement and stated that NAB would be prepared to cover the cost of Mr Gleeson obtaining legal advice (up to a limit of $3,500 excluding GST and disbursements). They also confirmed that NAB would further forbear from enforcing judgment or exercising its rights under the deed until 5:00pm on 23 June 2025 to enable Mr Gleeson to obtain legal representation. Mr Gleeson did not respond.
7. On 29 July 2025, NAB's solicitors sent a further letter to Mr Gleeson setting out in detail the background to the matter, advising that NAB intended to make an application for summary judgment, and requesting the payment of the balance of the settlement amount (then in the sum of $328,805.68) by 4:00pm on 12 August 2025, failing which NAB would file the contemplated application. Again, Mr Gleeson did not respond.
8. Accordingly, on 25 September 2025 (prior to the filing of the amended summons) NAB filed a summons seeking summary judgment against Mr Gleeson, together with an order for possession and ancillary relief ('summons'). While the relief in the summons did not include summary enforcement of the deed of settlement, NAB relied on affidavit material which made express reference to the deed. The summons was made returnable for hearing on 19 November 2025.
9. On 3 October 2025, NAB received a nominal payment of $100 from the defendant, which it applied in reduction of the settlement amount. The balance of the settlement amount as at 13 October 2025 was $328,705.68.
10. On 27 October 2025, the Court received correspondence from the plaintiff's solicitors proposing timetabling orders for the exchange of written submissions and further evidence in advance of the hearing of the summons. The plaintiff's solicitors emailed the proposed timetabling orders to Mr Gleeson on 20 October 2025, and again on 24 October 2025. Mr Gleeson did not reply to either correspondence nor to the plaintiff's further correspondence to the Court on 27 October 2025. On 29 October 2025, the Court emailed the parties requesting the defendant provide any comments on the proposed timetabling orders by the end of the day, after which time the proposed orders would be made by the Court in a slightly varied form. Later that day, the Court received an email from Mr Gleeson which did not engage with the proposed timetabling orders. The matter was then listed for mention on 30 October 2025 to address the timetable for the hearing of the summons.
11. At 11:33am on 30 October 2025, prior to the scheduled mention, the Court received an email from Mr Gleeson indicating, among other things, that he was unable to attend the mention in person and would not be able to access any audio-visual link for the hearing if provided. He also complained about the late notice for the mention given he is now self-represented and complained that he had been 'bushwhacked' by the Court's listing of the matter. In light of the pending hearing date of the summons on 19 November 2025 and Mr Gleeson's failure to provide any substantive comment on the proposed timetabling orders, the Court proceeded with the mention hearing. At the mention, the Court gave NAB leave to file and serve the amended summons by 31 October 2025. The Court also ordered Mr Gleeson file and serve any affidavit material in opposition to the amended summons by 7 November 2025 and the parties to exchange written submissions by 14 November 2025. The hearing of the amended summons was then confirmed for 19 November 2025. Mr Gleeson was emailed a copy of the Court's orders made on 30 October 2025 that day.
12. In the afternoon of 11 November 2025, Mr Gleeson contacted my Chambers by telephone concerning the timetabling orders made on 30 October 2025, seeking details of the Court's Self-Represented Litigants Coordinator ('SRL Coordinator'). He proceeded to speak aggressively to my Associate. My Associate later sent an email to Mr Gleeson providing him with the requested details of the Court's SRL Coordinator. On the morning of the hearing, Mr Gleeson spoke aggressively to my other Associate. I explained to Mr Gleeson at the hearing that such behaviour would not be tolerated, regardless of his status as a self-represented litigant. Being unrepresented is not a 'free pass' to misbehave or to treat others in the legal proceeding with disrespect or contempt.[3]
13. On 18 November 2025, prior to the hearing, Delany J made orders referring the proceeding to an Associate Judge for hearing and determination pursuant to r 77.05 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic).

1. In support of the amended summons, the plaintiff relies upon:

(a) the affidavits of Stephanie Trajcevska, solicitor, sworn 21 February 2025,[4] 14 November 2025 and 18 November 2025;

(b) the affidavit of Steven Palmer, solicitor, affirmed 12 March 2025;

(c) the affidavit of Mark Christopher Hochuli, employee of NAB, affirmed 25 September 2025; and

(d) written submissions dated 14 November 2025.

1. Mr Gleeson did not file any affidavit material or written submissions in opposition to the orders sought in the amended summons.

1. The Court has an inherent jurisdiction to summarily enforce the terms of settlement in a proceeding to which the terms relate, in accordance with the considerations identified by the Full Court in Roberts v Gippsland Agricultural & Earth Moving Contracting Co Pty Ltd.[5] Such considerations include, among other things, whether the settlement agreement relates to the conduct or dismissal of the proceeding, or whether it concerns matters and parties beyond the scope of the proceeding.[6] The fact that the only outstanding obligation under the agreement is one for the payment of an ascertained sum of money does not preclude the Court from enforcing the agreement and may be a factor in favour of it.[7] The critical question is whether the Court can be satisfied that justice can be done by summary enforcement of the settlement agreement.[8]
2. In Seachange Management Pty Ltd v Pital Business Pty Ltd,[9] the Victorian Court of Appeal (Maxwell P and Nettle JA) explained the scope of the Court's jurisdiction (which their Honours referred to as the 'the Roberts jurisdiction')[10] in this way:[11]

...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. In Bell v Knight 34 Langdon Road Pty Ltd,[12] Daly AsJ undertook a comprehensive review of the authorities and identified the following matters relevant to whether a court can be satisfied that justice can be done by summary enforcement of a settlement agreement:[13]

(a) whether the settlement agreement concerned included a term allowing the reinstatement of the proceeding and the entry of judgment upon default;

(b) whether all interested parties were before the court;

(c) whether the facts were uncontested and/or whether there was any dispute about quantum, and, to the extent there were such disputes, whether the resolution of those disputes turned upon the credibility of witnesses;

(d) whether requiring the issue of a new proceeding would cause further delay and expense; and

(e) whether there has been any unexplained delay on the part of the applicant for summary enforcement in seeking relief.

Determination of summary enforcement application

1. Despite not filing any evidence or submissions in compliance with the Court's orders, Mr Gleeson raised a number of arguments at the hearing in relation to the relief now sought by NAB in its amended summons.
2. Mr Gleeson contended his payment of $50,000 made on 16 January 2025, and the two payments received by NAB on 28 January 2025 totalling approximately $546,000, were not payments made in accordance with the terms of the deed of settlement because they were made via bank transfer and not PEXA and cl 4 of the deed did not contemplate any part-payments. In my view, whilst these payments were not strictly in accordance with the wording of the deed, they were nevertheless payments towards the agreed settlement amount under the deed, which NAB accepted. Further, by email dated 16 January 2025 from NAB's solicitors to Mr Gleeson's then solicitors, NAB consented to an extension of time for Mr Gleeson to remedy his default (until 24 January 2025) subject to NAB receiving payment of $50,000 into a nominated bank account that day. I accept NAB's submission that by this email exchange, NAB waived strict compliance with the payment requirements of the deed of settlement. By letter dated 30 May 2025, NAB's solicitors acknowledged three of the payments made by Mr Gleeson (in the total sum of $596,194.32) as being payments under the deed of settlement. Mr Gleeson did not dispute NAB's allocation of those payments towards the settlement amount under the deed at that time. But even if strict compliance with the payment arrangements under the deed of settlement had not in fact been waived, the extent of Mr Gleeson's default under the deed would have been greater. In other words, Mr Gleeson's argument about strict compliance with the payment terms of the deed does not assist him.
3. Mr Gleeson also submitted that NAB had ignored the Court's request (communicated via McCann JR's Associate) to submit a new consent judgment signed by him personally, given the earlier version was signed by his former solicitors. This argument favours form over substance. In reality, the consent judgment has simply been overtaken by events. NAB no longer relies on the consent judgment and has instead elected to seek summary enforcement of the deed by way of its amended summons.
4. Mr Gleeson argued at the hearing that despite his failure to pay the entirety of the settlement amount within the relevant time, NAB should not be entitled to possession of all four titles comprising the Molka property, which he understood to be worth approximately $5.4 million, in the context of a remaining debt of approximately $330,000. He said there should only be an encumbrance on volume 06142 folio 359 (which he referred to as 'Crown allotment 64', and which, as earlier mentioned, has also been referred to in the deed and by NAB in correspondence as the 'Southern Lot'), said to be valued at $1,070,464. Mr Gleeson also argued the plaintiff should remove its security against the other three titles while he attempted to sell Crown allotment 64.
5. I do not accept these arguments for a number of reasons.
6. First, Mr Gleeson is bound by the deed of settlement which required him to pay the settlement amount of $925,000 in full by 15 December 2025, as later extended to 24 January 2025 on the terms set out in the 16 January 2025 email. He was legally represented at the time the deed was negotiated and signed by him. Whilst I accept Mr Gleeson has made substantial part-payments towards the settlement sum to date, he remains in breach of cl 5.1(2) of the deed and has failed to fully remedy his default as set out in the notice of default. The consequences of that default are made clear by cl 8.1 of the deed. They include NAB being entitled to seek the consent judgment signed by the parties' solicitors for possession of all of the Molka property. In other words, the deed of settlement makes clear that unless the whole of the settlement amount is received, NAB would be entitled to take possession of the whole of the Molka property, regardless of the extent of any part-payments made by Mr Gleeson. Moreover, NAB is under no obligation to remove its mortgage over any of the titles comprising the Molka property until the settlement amount is paid in full.
7. Second, correspondence passing between NAB's solicitors and Mr Gleeson on 11 and 17 November 2025 suggests Mr Gleeson has been unsuccessful in attempting to sell Crown allotment 64 in late 2024 and early 2025, that Crown allotment 64 remains on the market and that Mr Gleeson is considering changing the selling agent. There is no evidence before the Court to suggest Crown allotment 64 is capable of being sold by Mr Gleeson in a reasonable period of time to discharge the balance of the settlement amount, without recourse to the remaining titles comprising the property.
8. Third, a mortgagee in possession is required to act in good faith and have regard to the interests of the mortgagor.[14] It is also obliged to obtain the best price consistent with its entitlement to realise its security.[15] Relevantly, a mortgagee must act in accordance with its obligation to sell in good faith when dealing with a number of lots held as security. In MBF Investments Pty Ltd v Nolan,[16] the Court of Appeal (comprising Neave, Redlich and Weinberg JJA) held:[17]

The selection, in such circumstances, of a lot or lots contrary to the wishes of the mortgagor, rather than an equally saleable lot or lots which would be sufficient to satisfy the full amount, might also provide the basis for an inference that the mortgagee acted in reckless disregard of the interests of the mortgagor, thus breaching the duty to sell in good faith. To that extent, the duty imposed on the mortgagee by s 77(1) [of the Transfer of Land Act 1958 (Vic)] to have regard to the mortgagor's interests is not confined to a duty of obtaining the best price.

However, where there are genuine doubts about the saleability of some lots or whether the sale of a particular lot or lots will be sufficient to satisfy the full amount, we do not consider that the mortgagee's duty requires it to take account of the mortgagor's preference as to the order of sale. The mortgagee's duty has never been recognised as extending so far.

1. Additionally, the mortgagee is required to account to the mortgagor in relation to any surplus from the proceeds of sale.[18]
2. Accordingly, NAB may sell the Molka property in the manner it considers appropriate, so long as it acts in good faith and having regard to Mr Gleeson's interests. NAB must also seek to obtain the best price consistent with its entitlement to realise its security and account to Mr Gleeson in respect of any surplus.
3. For completeness, I note that in an email to NAB's solicitors dated 17 November 2025, Mr Gleeson made reference to his defence in the proceeding dated 20 October 2023 and the status of certain market rate facilities. In essence, Mr Gleeson pleads in his defence that NAB is 'double counting' advances made to him on the basis that one loan had been split into two facilities and counted twice. However, this point is not particularly relevant to NAB's application to summarily enforce the deed of settlement. It has greater relevance to NAB's summary judgment application, which has been adjourned pending the outcome of the application for summary enforcement of the deed.[19]
4. In addition, Mr Gleeson sent an email to Court this morning in which he sought to raise a further submission to the effect that NAB should participate in a mediation process in accordance with the Farm Debt Mediation Act 2011 (Vic) because one of the facilities in issue[20] was not created until after the parties participated in an earlier farm debt mediation held on or about 23 July 2021. Mr Gleeson is seeking to raise this argument after the hearing of the amended summons and without notice to NAB. I do not propose to deal with it in any detail, other than to say it is again a matter that does not appear to be relevant to the question of whether the deed of settlement should be enforced. In any event, the deed was entered into after a judicial mediation between the parties on 27 June 2024, which post-dates the creation of the facility Mr Gleeson has referred to.
5. It is not disputed by Mr Gleeson, and I am otherwise satisfied on the available evidence, that:

(a) the deed of settlement has not been fully complied with by Mr Gleeson;

(b) a notice of default has been properly served by NAB on Mr Gleeson; and

(c) the notice of default has not been fully remedied.

1. In my view, summary enforcement of the deed of settlement should be granted in favour of NAB for the following reasons:

(a) the deed does not involve any matters or property extraneous to the proceeding itself or raise substantial questions which require formal pleadings, discovery or cross-examination to resolve. The significant outstanding obligation under the deed is for the payment of the settlement amount;

(b) the settlement amount under the deed was initially due to be paid by Mr Gleeson almost a year ago (although later extended to 24 January 2025). NAB has given Mr Gleeson multiple opportunities to remedy his breach of the deed of settlement and went so far as to offer to pay for him to obtain legal advice, an offer to which he has not responded;

(c) any delay on the part of NAB in seeking relief for summary enforcement is explained by its repeated attempts to engage with Mr Gleeson and to afford him additional time to perform his obligations under the deed;

(d) the deed expressly contemplated that the orders sought would be made through consent judgment in the event Mr Gleeson defaulted. Further, Mr Gleeson covenanted not to take any steps to oppose, defend, hinder or obstruct that course;

(e) Mr Gleeson was represented at the time the deed of settlement was executed and there is no suggestion the deed is in any way unenforceable or invalid; and

(f) Mr Gleeson will remain entitled to exercise the 'equity of redemption' in the event that he is able to pay the outstanding portion of the settlement amount before the property is delivered up in accordance with the Court's orders and before it is sold. The 'equity of redemption' refers to the mortgagor's right to redeem (or discharge) the mortgage up to the point of foreclosure or exercise of the power of sale by paying to the mortgagee the full amount of the outstanding debt, or performing the obligation for which security was given, even if the mortgagor is in default.[21]

1. Further, I consider that the summary enforcement of the deed of settlement will enable justice to be done in this case.
2. Finally, in correspondence to Mr Gleeson from NAB's solicitors on 11 and 17 November 2025, it was suggested that NAB would 'remain willing to discuss a mutually agreeable path forward even if it is successful in obtaining judgment' and would forbear from enforcing any order for possession of the Molka property' until 5pm on 14 February 2026 to allow Mr Gleeson to sell Crown allotment 64 or obtain finance in order to pay the balance of the settlement sum. At the hearing, I asked NAB's counsel whether her client would consent to a stay of judgment until that time. Counsel submitted that given the offer of forbearance, NAB could not resist a stay. In the exercise of my discretion to grant summary enforcement of the deed of settlement, and in ensuring justice to be done, I will therefore order a stay of the judgment for such a period.

1. In light of the above reasons, there will be judgment in favour of NAB by way of summary enforcement of the deed of settlement in respect of the outstanding settlement amount (i.e. $328,705.68). There will also be orders for delivery up of the Molka property. I will make a further order staying the operation of the judgment until 5:00pm on 14 February 2026 to enable Mr Gleeson time to either sell Crown allotment 64, or to realise the necessary funds to discharge the amount owing under the deed of settlement, and to otherwise facilitate negotiations between the parties concerning the orderly sale of the Molka property.
2. I will hear from the parties on the precise form of order to give effect to these reasons.

[1] Described in certificates of title volume 06142 folio 359, volume 06252 folio 385 and volume 11306 folios 813 and 814.

[2] Confidentiality is no longer claimed over this affidavit.

[3] O'Connell v The State of Western Australia [2012] WASCA 96, [109] (Mazza JA, with whom Martin CJ and Buss JA agreed).

[4] The first affidavit of Stephanie Trajcevska was marked confidential when sworn, however, NAB no longer seeks a confidentiality order in respect of it. The affidavit was provided to the Court around the time it was sworn but only formally filed on 3 October 2025.

[5] [1956] VicLawRp 21; [1956] VLR 555.

[9] [2009] VSCA 139; (2009) 23 VR 396.

[11] Ibid 408. See also Bell v Knight 34 Langdon Road Pty Ltd [2022] VSC 497, [47]-[52] (Daly AsJ).

[12] [2022] VSC 497.

[14] See s 77(1) of the Transfer of Land Act 1958 (Vic) and ELG Taylor, PW Young and CE Croft, Fisher & Lightwood's Law of Mortgage (Lexis Nexis Butterworths, 3rd Australian ed, 2014) [20.21]-[20.22] ('Fisher & Lightwood's Law of Mortgage') and the cases referred to there.

[15] Vasiliou v Westpac Banking Corporation [2007] VSCA 113; (2007) 19 VR 229, 242 (Maxwell P, Neave and Kellam JJA).

[16] [2011] VSCA 114; (2011) 37 VR 116.

[18] Fisher & Lightwood's Law of Mortgage [39.21], citing Adams v Bank of New South Wales [1984] 1 NSWLR 285; CSC Developments Pty Ltd v Commonwealth Bank of Australia [2012] NSWSC 1162; (2012) 16 PBR 31, 735.

[19] For completeness, in his affidavit of 25 September 2025, Mr Hochuli gives evidence that there was no double counting by NAB in relation to the advances made to Mr Gleeson under the relevant facilities.

[20] An account ending in the last four digits 3444.

[21] See Sun North Investments Pty Ltd (as trustee) v Dale & Anor [2013] QSC 44; [2014] 1 Qd R 369, 382 (Henry J) and the authorities referred to there. See also Fisher & Lightwood's Law of Mortgage [1.15].