Plaintiff v Defendants

Plaintiff v Defendants - [2011] VSC 297 - VSC 2011 case summary — Zoe

[266]

The proceeding is to be struck out with a right of reinstatement against the first, second, third and seventh defendants, and the parties agree to execute consent orders to that effect if so required by the Court.
In the event that any payment due to be made in accordance with paragraph 2 is outstanding for more than 2 days after the due date, the plaintiff shall be entitled to reinstate the proceeding, and enter judgment against the first, second, third and seventh defendants for all amounts remaining to be paid under these terms, together with the costs of reinstating the proceeding and entering judgment.
Upon all payments required to be made by the first, second, third and seventh defendants to the plaintiff pursuant to these terms of settlement having been received by the plaintiff, the plaintiff will lodge with the Australian Securities and Investments Commission notifications of discharge of its registered charges nos. 1330793 (in respect of the first defendant) and 1330796 in respect of the seventh defendant.
For the avoidance of doubt, the payments to be made under these terms of settlement are to be secured by the Charges.
The plaintiff agrees to execute all documents necessary to discharge the registered mortgage no. 709902869 given by the second defendant to the plaintiff in respect of the property described in Queensland Certificate of Title no. 50234114.
The plaintiff agrees to execute all documents necessary to discharge the registered mortgage no. 709902875 given by the second and third defendants to the plaintiff in respect of the property described in Queensland Certificate of Title no. 50181207.
In consideration of the parties entering these terms of settlement, the first, second, third and seventh defendants (jointly and severally) release the plaintiff from all claims which they have or may have against it arising out [of] the matters the subject of the proceeding, or in ... respect of any other matters whatsoever.
In consideration of the parties entering these terms of settlement, the plaintiff agrees to forbear from seeking to enforce against the first, second, third and seventh defendants all claims which it has or may have against any one or more of them arising out [of] the matters the subject of the proceeding, or in ... respect of any other matters whatsoever, save as provided for by these terms of settlement. For the avoidance of doubt, the plaintiff agrees to forbear from seeking to enforce against any of the first, second, third and seventh defendants all existing costs orders which it has against them in the proceeding.

[310]

8. RIGHTS OF MORTGAGEE NOT PREJUDICED

8.1 Waiver

The Mortgagee's rights under this Mortgage will not be prejudiced or affected by:

...

8.1.2 the compounding, compromise, release, abandonment, waiver, variation, relinquishment or renewal of any security, document of title, asset or right of the Mortgagee against the Mortgagor or any other surety;

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8.1.7 any alteration, variation or addition to any agreement in respect of all or part of the Secured Moneys;

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21 CONTINUING SECURITY

21.1 Continue until released

This Mortgage and any Additional Security are continuing securities and will remain in force and effect until a final discharge is given by the Mortgagee notwithstanding:

21.1.1 that no Secured Moneys are owing at that time;

21.1.2 any settlement of account; or

21.1.3 any other matter or thing;

...

24 INDEMNITY

The Mortgagor indemnifies and will keep indemnified, the Mortgagee against all actions, claims, demands, losses, damages (including property damage and personal injury, economic loss and any other kind of damage) costs, charges, payments and expenses of any kind occurring against or incurred or occasioned to the Mortgagor by the Mortgagee or any other person by reason of:

24.1 the relationship of Mortgagor and Mortgagee created by this Mortgage;

24.2 anything done or omitted to be done by the Mortgagor or the Mortgagee under this Mortgage or concerning the Mortgaged Property;

24.3 the exercise, attempted exercise or failure to exercise any of the powers conferred on the Mortgagee by this Mortgage or any Act;

24.4 any neglect or default by the Mortgagee or of any person for whose acts or omissions the Mortgagee may be vicariously or otherwise responsible;

24.5 the Mortgagee being in possession of the Mortgaged Property,

and all amounts for which the Mortgagee is indemnified will accrue and be deemed to be part of the Advance in arrears.

...

38. JOINT AND SEVERAL LIABILITY

If an obligation is to be performed by a person for or with another person, each person will be both jointly liable with the other person and severally liable on its own account to perform the obligation. A release given to the other person shall not release the other from any obligation. The granting of time or any other indulgence to another person will not release the person from its obligations under this Mortgage.

At a glance

Court

Decision date

Before

Source

Judgment (367 paragraphs)

Parties

Legislation Cited (16)

Cases Cited (6)