Plaintiffs v Defendants

For the Third to Eighth Defendants and Plaintiffs by Counterclaim

1. This proceeding was commenced by the plaintiffs in 2018. Following a protracted period of delay by the parties in readying the matter for hearing, the proceeding was fixed for trial commencing on 18 August 2025.
2. The proceeding concerned loans made by the plaintiffs to the first and second defendants, which loans were guaranteed by the other defendants, and which had not been repaid. Counterclaims were made by the defendants. It is not necessary for me to describe the subject matter of the proceeding in any detail.
3. Shortly before the trial, on 14 August 2025 the parties provided signed consent orders which resolved the proceeding. Those orders provided that the trial fixed for 18 August 2025 be vacated, the proceeding and counterclaim be dismissed with a right of reinstatement by the first to fourth plaintiffs only (hereafter referred to as the Plaintiffs), and there be no order as to costs. I made those orders on the same day.
4. By email sent on 3 December 2025 to my Chambers, the Plaintiffs applied for the proceeding to be reinstated and for a consent judgment to be made (Application). An affidavit of Helen Adoranti, sworn on 3 December 2025 (Adoranti Affidavit) was provided, along with a copy of the consent judgment. Ms Adoranti is a solicitor employed by Summer Lawyers (Australia) Pty Ltd (Summer Lawyers), the solicitors for the Plaintiffs. The consent judgment was agreed between the Plaintiffs and defendants as part of a deed of settlement entered into on or around 12 August 2025 by which the parties to the deed agreed to compromise this proceeding (Deed).
5. Subsequent to receiving the Application, the Court required the Plaintiffs to give notice of it to the defendants. After receiving notice from the solicitor on the record for the third to eighth defendants (Opposing Defendants) that they opposed the Application, the Court gave the Opposing Defendants until 2pm on 5 December 2025, subsequently extended to 2pm on 9 December 2025, to file and serve any affidavits and submissions. The Opposing Defendants filed and served written submissions and three affidavits by that deadline. The affidavits were from Anthony John Goss, who is the eighth defendant, affirmed 9 December 2025 (Goss Affidavit); Christina Strouzas, who describes herself as the sixth defendant in her affidavit but is in fact the seventh defendant, affirmed 9 December 2025 (Strouzas Affidavit); and, Michael John Murphy, who is the third defendant affirmed 9 December 2025 (Murphy Affidavit).
6. The Plaintiffs were then given until 2pm on 11 December 2025 to file reply submissions (if any) and the parties were informed that the application would be listed for hearing on 12 December 2025.
7. There has been no communication by or on behalf of the first, second and ninth to twelfth defendants (Other Defendants) as to their attitude to the Application.
8. On the morning of 11 December 2025, the Plaintiffs filed the following in reply to the Opposing Defendants' affidavits:

(a) a supplementary affidavit from Ms Adoranti sworn 11 December 2025 (Supplementary Adoranti Affidavit);

(b) an affidavit of John Pascoe sworn 10 December 2025 (Pascoe Affidavit). Mr Pascoe deposes that the first plaintiff, Doug Pascoe Investments Pty Ltd, is a family business, that he assists with the everyday running of it, and that he is authorised to make the affidavit on behalf of the first plaintiff; and

(c) an affidavit of Robert (Bob) Lewis sworn 10 December 2025 (Lewis Affidavit). Mr Lewis is one of the directors of the second to fourth plaintiffs and is authorised by them to make the affidavit.

1. Prior to the stipulated deadline, the Plaintiffs filed written submissions.
2. At 8:18pm on 11 December 2025, the Opposing Defendants filed an affidavit from Mr Goss affirmed 11 December 2025 in reply to the Plaintiffs' affidavits (Goss Reply Affidavit).
3. I heard the Application on 12 December 2025.
4. For the reasons which follow, the Application will be granted and I will make orders accordingly.

1. By the Deed entered into on or about 12 August 2025, the parties agreed to compromise this proceeding.
2. As part of the Deed, upon its execution the parties through their solicitors were to sign a minute of consent orders in the form of annexure A to the Deed, which provided for the matters referred to in paragraph 3 above.
3. Pursuant to the Deed, the parties agreed that the defendants were to pay the settlement sum of $3,200,000 (Settlement Sum) to the Plaintiffs by way of instalments. Failure to pay any of the instalments was an event of default under the Deed, and subject to the Plaintiffs providing notice to remedy the event of default in accordance with the terms of the Deed, they could reinstate the proceeding without any further notice to the defendants. The Plaintiffs could also enter judgment in the form of a consent judgment executed by the parties and contained in an annexure to the Deed or make an application for judgment to obtain the orders set out in that annexure (clause 7.3(a)).
4. Under clause 7.5 of the Deed, the requisite notice period for the Plaintiffs enforcing an event of default was 2 months for the first to fifth instalment payments and 3 months for the sixth to tenth instalment payments. The first instalment payment was due on 22 September 2025 and the tenth was due on 31 March 2027, and the defendants agreed and acknowledged that they were to be made strictly on their due dates and they acknowledged the default provisions in clause 7 (clause 4.3).
5. Further, the parties agreed that if an event of default occurred which was not remedied in accordance with notice to do so, then the defendants agreed:

(a) that the proceeding could be reinstated (clause 7.2);

(b) to pay the Settlement Sum plus interest from the due date on the whole of the balance then outstanding at the rate fixed by section 2 of the Penalty Interest Rates Act 1983 plus 4% per annum (clause 7.3(b));

(c) by clause 7.3(b) of the Deed, they irrevocably undertook, acknowledged and agreed:

(iii) they jointly, severally and/or in combination shall not at any time bring, institute or support any proceeding in any jurisdiction, commission or tribunal against [the Plaintiffs] to dispute or challenge (whether at common law, in equity, or under any statute), or delay or frustrate any steps taken by [the Plaintiffs] to enforce the terms of this Deed;

(iv) not to take any steps to prevent, delay, frustrate [the Plaintiffs] from seeking to enforce its rights and entitlements under this Deed;

(v) not to defend any action or steps taken by [the Plaintiffs] to recover:

(i) the Settlement Sum and interest; and

(ii) any costs previously ordered to be paid by them to [the Plaintiffs].

(d) to consent to an order that they pay the Plaintiffs' costs of the proceeding, including reserved costs and the costs of reinstating the proceeding and any application for judgment, on a full indemnity basis to be taxed in default of agreement (clause 7.4(a));

(e) further to clauses 7.3(a) and 7.3(b), the Plaintiffs may apply for the entry of such judgment by the filing of an application for judgment and an affidavit exhibiting a copy of the Deed and deposing to the defendants' failure to make all or any payments due under the Deed and to the amounts outstanding and interest (clause 7.4(b)); and

(f) further to clauses 7.3(a) and 7.3(b), the Deed constituted the irrevocable consent of the parties to the entry of such judgment and the production of the Deed to the Court shall be conclusive evidence of all consents necessary to give effect to the default provisions (clause 7.4(c)).

1. It was a term of the Deed that the parties, through their solicitors, upon execution of the Deed sign a consent judgment containing the matters in paragraph 17(b) and (c) above in the form annexed to the Deed, which consent judgment was to be held in escrow by Summer Lawyers and only used in the event of default (clause 8(b)).
2. Other relevant provisions of the Deed are as follows:

By executing this Deed, [the defendants], jointly, severally and/or in combination, warrant that:

(a) they enter into this Deed having first obtained independent legal advice;

(b) this Deed reasonably accommodates their current circumstances and they are able to comply with their respective obligations under this Deed;

(c) they entered into this Deed willingly and without reliance on any written or verbal statements, representations or communications by or on behalf of [the Plaintiffs]; and

(d) they are aware that [the Plaintiffs] are relying upon these warranties in executing this Deed.

This Deed:

(a) expresses and incorporates the entire agreement between the Parties in relation to its subject matter, and all of the terms of that agreement;

(b) supersedes and excludes any prior or collateral negotiation, understanding, communication or agreement by or between the Parties in relation to that subject matter or any term of that agreement; and

(c) contains the entire understanding between the Parties concerning the issues the subject of the Proceeding and supersedes all previous correspondence between the Parties.

(c) Clause 15.9 of the Deed provides that the Deed 'may be amended only in writing and such amendment must be executed by all Parties'.

1. A duly signed consent judgment in the form annexed to the Deed has been provided to the Court (Consent Judgment). It provides as follows:

(1) The Defendants pay the First to Fourth Plaintiffs:

(a) the sum of $3,200,000 (or such other amount as the Court orders);

(b) interest on the amount of $3,200,000 from 22 September 2025 (or such other date as the Court orders) to the date of judgment at the rate at the rate [sic] as fixed by section 2 of the Penalty Interest Rates Act 1983 plus 4 percent per annum;

(2) The Defendants pay to the First to Fourth Plaintiffs interest, after the date of judgment, on any judgment amount pursuant to the prescribed interest rate pursuant to s 101 of the Supreme Court Act 1986 as fixed by section 2 of the Penalty Interest Rates Act 1983.

(3) The Defendants to pay the First - Fourth Plaintiffs' costs of this proceeding, including the Plaintiffs' costs of and incidental to the application for judgment and the entry of such judgment, to be taxed on an indemnity basis in default of agreement.

B.2 Plaintiffs' evidence in support of the Application

1. The Adoranti Affidavit deposes as to the matters referred to in paragraph 17(e) above. In particular:

(a) a copy of the executed Deed and of the notices given to the defendants are exhibited to the affidavit;

(b) the first instalment of $300,000 was due to be paid by 22 September 2025. It was not paid on time, or at all;

(c) on 23 September 2025, the Plaintiffs gave notice to the defendants, in accordance with the Deed (which pursuant to clause 7.5 of the Deed required a notice period of 2 months), to remedy the default by 24 November 2025 by paying $300,000 on or before that date. The notice also stated that if payment was not made by that date, the Plaintiffs would enforce the Deed and, among other things, file the Consent Judgment without any further notice to the defendants;

(d) the defendants failed to pay the $300,000 by 24 November 2025. As at the date of the Adoranti Affidavit, no payment had been made;

(e) accordingly, the Plaintiffs are entitled under the Deed to file the Consent Judgment;

(f) the whole of the Settlement Sum is outstanding;

(g) interest from 22 September 2025 to 3 December 2025 on the Settlement Sum is $88,372.60, calculated on the following basis:

(i) the current penatly interest rate fixed by section 2 of the Penalty Interest Rates Act 1983 is 10%, plus $% per annum gives an interest rate of 14% per annum;

(ii) the number of days between 22 September 2025 and 3 December 2025 is 72 days;

(iii) $3,200,000 at 14% per annum divided by 365 days equals $1,227.40 per day. The daily rate multiplied by 72 equals $88,372.60.

1. The orders sought by the Plaintiffs are substantially in the form contained in the Consent Judgment, adapted to reflect the amount outstanding pursuant to the Deed and the interest calculation to 3 December 2025. Thus order 1(a) would be judgment for the amount of $3,200,000, with order 1(b) being interest on the amount of $3,200,000 from 22 September 2025 to the date of judgment at the rate as fixed by section 2 of the Penalty Interest Rates Act 1983 plus 4% per annum, namely $88,372.60.[1] Orders 2 and 3 would remain unchanged.

B.3 The Opposing Defendants' evidence in opposition to the Application

1. Mr Goss deposes that he is a property developer currently working on a large project in Southport, Queensland (Southport Project) which was due to have 'a financial settlement' in September 2025. That has been delayed with settlement scheduled for 'mid next week but before 19 December 2025'. No further detail is provided regarding this financial settlement, other than to exhibit a copy of an indicative loan offer and acceptance fee receipt.
2. Mr Goss deposes that throughout this proceeding, Mr Pascoe has communicated with him and held himself out as a representative of the first plaintiff. He says that Mr Lewis is the director of the second and third plaintiffs.
3. Mr Goss deposes that on at least four occasions in June and July 2025, Mr Pascoe said to him over the phone that:

(a) if I signed the Deed, then he 'promised' he would not permit a judgment to be registered in the event I was late on a payment under the Deed;

(b) he 'promised' he would work with me to come to a satisfactory outcome for all parties resulting in the repayment of the funds under the loan agreements the subject of this proceeding or the Deed;

(c) it was in no one's interest if I was unable to operate my development business as I would then not be able to repay the plaintiffs; and

(d) he 'promised' he would not take any action that would jeopardise my ability to repay him his funds.

1. He also deposes that in the months prior to the Plaintiffs signing the Deed, Mr Lewis told him that:

... he would not take action on late payments if I showed him evidence that I was getting closer to providing the repayment funds. He said he would work with me and not take any action that would jeopardise my ability to repay him his funds.

1. Mr Goss deposes that 'If I had not received the assurances from John and Bob, I would not have signed the Deed.'
2. According to Mr Goss, if judgment is given against the defendants now on the basis of the Deed, he would have to resign his directorships in and the Southport Project will have difficulties in the 'current refinancing' next week. He says he has been advised that the judgment would likely be publicly accessible by financiers. If he resigns his directorships in the Southport Project, he will lose a significant amount of money by way of lost profits and wasted costs. He says that the delay in the financial settlement on the Southport Project is why the defendants could not pay the first instalment payment under the Deed 'of 22 November 2025' and that he is the only one of the defendants capable of funding the payments.
3. Mr Goss deposes that prior to Mr Murphy, Ms Strouzas and Duncan Skinner (the sixth defendant) signing the Deed, he explained to them the pros and cons of signing the Deed, and that Mr Pascoe and Mr Lewis had given the assurances referred to in paragraphs 25 and 26 above and told them the content of those assurances. Mr Goss says that Mr Murphy, Ms Strouzas and Mr Skinner said to him that they would not have signed the Deed without the assurances.
4. Mr Goss deposes the following in respect of an amendment to the Deed:

(a) on 19 November 2025, he emailed Mr Pascoe and Mr Lewis asking for an amendment to the Deed such that an additional $500,000 would be paid to the Plaintiffs in consideration for extra time on the first payment. Mr Lewis replied that he was in principle agreeable to that amendment, subject among other things to approval by Summer Lawyers. The email chain is exhibited;

(b) On 21 November 2025, Charles Wantrup, solicitor for the Opposing Defendants, sent an email to Summer Lawyers setting out a proposal in the terms set out in that email chain. That email is exhibited;

(c) on 25 November 2025, Summer Lawyers sent a letter to Mr Wantrup making two alternative offers providing for the extension of the repayment date of the first payment under the Deed to 22 December 2025, which offers were conditional on an entity involved in the Southport Project providing mortgages over the development property. That letter stated that if Summer Lawyers did not receive a response by 1 December 2025, then on 2 December 2025 it would file the Consent Judgment without further notice. A copy of the letter is exhibited;

(d) on 1 December 2025, Mr Wantrup emailed Summer Lawyers indicating that the mortgages sought could not be given, and he instructed Mr Wantrup to do so as he believed that the security conditions were unachievable;

(e) after that, he thought about it some more and realised he could provide the mortgages requested. He emailed Mr Lewis and Mr Pascoe on 2 December 2025 to ask Summer Lawyers to give him until about 11am that day to run the mechanics of his proposal past Mr Wantrup. That email is exhibited;

(f) on the same morning, Mr Wantrup attempted to call Summer Lawyers without success, and Mr Wantrup then received an email from Summer Lawyers stating that it would only communicate by email. That email is exhibited; and

(g) that afternoon, ie the afternoon of 2 December 2025, Mr Wantrup sent an email to Summer Lawyers stating that Mr Goss was working on a way to provide the unregistered mortgages as required for the two properties in Southport, which he expected to be able to provide 'this advice' by 10am Thursday (ie 4 December 2025) with the intent of having it documented by your requested date of 5 December 2025. That email is exhibited.

1. Mr Goss deposes that on 3 December 2025, Mr Wantrup received by email an electronic filing notice from the Court. Mr Goss then deposes that:

(a) he immediately rang Mr Pascoe, who did not answer; and

(b) he then rang Mr Lewis. He asked Mr Lewis about the electronic filing, who said he knew nothing about it. He says he asked Mr Lewis if Summer Lawyers were acting without his authority, and Mr Lewis said he did not know what Summer Lawyers had filed and when he asked if Summer Lawyers were making the decisions, Mr Lewis 'never gave me an answer';

(c) he had another phone call with Mr Lewis on 4 December 2025. The content of that call is described as:

(i) he told Mr Lewis that any judgment against the defendants would prevent the financial settlement in relation to the Southport Project on 10-15 December 2025, with the result that he would be unable to make any payments under the Deed;

(ii) Mr Lewis replied that Summer Lawyers had told him that the judgment would not be publicly available and therefore would not affect Mr Goss's financial settlement;

(iii) Mr Lewis told him that Summer Lawyers had said to him that Mr Goss was bluffing and would not allow himself to be made bankrupt; and

(iv) Mr Lewis asked him to provide the mortgages in relation to the Southport Project and said Summer Lawyers wouldn't enforce the judgment.

1. Mr Goss deposes that the matters in paragraphs 30(a) and 31(b) above:

...found a belief of mine that Summer Lawyers may be making decisions on behalf of the plaintiffs, without their authority, and that Summer Lawyers effectively hold decision making power as a de facto applicant. If this is the case, and had I known this, I would not have signed the Deed. I have had experience with Summer Lawyers during this 7 year litigation and they generally enforce on agreements quickly.

In my opinion, none of the other defendants would have signed the Deed either had they known the position in relation to Summer Lawyers. Each of them has had the same experience with the fourth defendant losing his house at Unit 9, 50 Burnley Street, Richmond and the fifth defendant losing her house at 7 Nunan Street, Brunswick East as part of this litigation and we have all discussed during meetings how Summer Lawyers enforces on agreements quickly.

I would also have advised the other defendants not to sign the Deed had I known the position in relation to Summer Lawyers.

1. Finally, Mr Goss deposes that he does not consent to the judgment for which the Plaintiffs now apply, and that if he ever gave consent (which he denies), then he withdraws it.
2. The Strouzas Affidavit relevantly states as follows:
   1. I make this affidavit in opposition to the plaintiffs' application dated 3 December 2025 for this proceeding to be reinstated and consent judgment entered.

...

1. In early August 2025, I had extensive discussions with the eighth defendant (Tony Goss) in which we discussed the pros and cons of signing a Deed of Settlement and Release. ...
2. During those discussions we talked about Tony Goss's interactions and discussions with John Pascoe and Bob Lewis.
3. Tony Goss said to me that John and Bob had given him assurances that they would not permit a judgment to be registered against the defendants under the Deed. Without those assurances I would not have signed the Deed.
4. I do not consent to the judgment for which the plaintiffs now apply. If I ever gave consent (which I deny), then I withdraw it.
5. I understand there is a possibility that Summer Lawyers effectively hold decision making power as a de facto applicant. If this is true, and had I known this, I would not have signed the Deed.

B.4 The Plaintiffs' evidence in reply to the Opposing Defendants' evidence

1. In the Supplementary Adoranti Affidavit, Ms Adoranti deposes that:

(a) she is authorised to make the affidavit on behalf of the Plaintiffs;

(b) on 23 July 2025, she sent an email to Mr Wantrup attaching the first draft of the deed of settlement of release, which is exhibited to the affidavit; and

(c) between 23 July and 12 August 2025, the deed was the subject of negotiations between the parties and their solicitors until the final version was agreed upon and signed on or about 12 August 2025.

1. In the Pascoe Affidavit, Mr Pascoe deposes that he has read the Goss Affidavit and makes this affidavit in reply. He deposes as to the following in respect of offers made to settle the proceeding:

(a) he has read the Goss Affidavit and makes this affidavit in reply;

(b) on 14 May 2025, he received an email from Mr Goss attaching a confidential offer. In that offer, Mr Goss listed conditions to the offer which included summary judgment on himself if the payments listed in the offer were not paid on time and the notice period for each payment was not complied with. That offer was not accepted;

(c) on 15 July 2025, he received an email from Mr Goss attaching a confidential offer. That offer contained the same condition described in sub-paragraph (b) above;

(d) on 15 July 2025, Mr Lewis responded to Mr Goss's offer by email, copying in Mr Pascoe;

(e) on 17 July 2025, he instructed Summer Lawyers to write to Wantrup & Associates with an offer to settle the proceeding. That offer included default provisions and stated that the defendants were to provide an

...irrevocable undertaking that should any of the payments not be made on their due date, and provided the Plaintiffs have provided the appropriate notice (as below), then they agree to the Plaintiffs being at liberty to reinstate the proceedings and apply for a monetary Judgment against all or any of them for the balance of the Settlement Amount owing at the time.

(f) on 7 August 2025, Wantrup & Associates sent an email to Summer Lawyers containing an offer. One of the conditions listed in the offer was the same as that referred to in sub-paragraph (b) above;

(g) the parties executed the Deed on 12 August 2025. The notice period sought by Mr Goss in his offers of 15 July 2025 and 7 August 2025 before judgment could be entered if there was a default in payment were ultimately agreed to and included in the Deed.

1. In the Lewis Affidavit, Mr Lewis deposes as to the following in respect of offers made to settle the proceeding:

(a) he and Mr Pascoe received the emails and offers from Mr Goss sent on 14 May 2025 and 15 July 2025;

(b) on 15 July 2025 he sent an email replying to Mr Goss's offer of that morning. A copy of that email and its attachments are exhibited. I note that in the email, Mr Lewis wrote:

Haven't you been listening when we have had our conversations I made it very clear that in order for us to stop the court proceedings the first payment must be made before the end of July 2025.

Please find my attached response in red on a without prejudice basis.

I also note that the attachment referred to in that email was a copy of Mr Goss's 15 July offer, with handwriting added. Relevantly, one of the handwritten annotations is 'If defaulted longer than allowed period we have a right to go straight to court'.

(c) he received an email in response from Mr Goss on 15 July 2025, which is exhibited to the Lewis Affidavit. I note that in that email, Mr Goss wrote:

I have been listening Bob, I just won't have the funds until the end of August that's when my refinance goes through

The court will agree to put the case on hold for 30 days subject to the payment being made

(d) with Mr Pascoe, on 17 July 2025 they instructed Summer Lawyers to write to Wantrup & Associates with a settlement offer;

(e) he describes the offer received from Wantrup & Associates by Summer Lawyers on 7 August 2025 in the same terms as described by Mr Pascoe; and

(f) on 12 August 2025, he executed the Deed on behalf of the second to fourth plaintiffs.

1. In respect of his telephone calls with Mr Goss, Mr Pascoe deposes that:

(a) between 14 May 2025 until 18 August 2025, he and Mr Lewis had telephone discussions with Mr Goss in relation to offers to settle the proceeding. During those telephone conversations with Mr Goss, he never made any promises to him and he categorically denies that he promised Mr Goss the matters referred to in paragraph 25 above; and

(b) on or about 25 July 2025, he had a telephone conversation with Mr Goss, with words to the effect of:

Mr Goss: If I am a day or two late with a payment, and you can see that there was money there, you won't bankrupt me, will you?

I said: No, I'm not an idiot. I would not do that if you were a day or two late on paying.

1. Mr Goss responds to this in the Goss Reply Affidavit, saying that the conversation did not go as he has said. He deposes that:

Mr Pascoe said that if signed the Deed he would not, and would not allow 'the others', to take action against the defendants if I was doing everything in my power to pay the plaintiffs, as it would not be in their best interests to take action. I also never used the word 'bankrupt, contrary to what he says.

1. Mr Lewis deposes, in respect of Mr Goss's evidence in paragraph 26 above, he had six telephone calls with Mr Goss between 30 June 2025 and 26 September 2025. He gives the dates and duration of each of those calls. Mr Lewis then deposes that during those calls, he told Mr Goss that:

(a) I would work with him if he provided strict proof to repay the monies owed to myself and Doug Pascoe/John Pascoe. I said that sufficient documentation needs to be provided in a strict timeframe, and if so, then I would give him a few days leeway and;

(b) if he did not provide strict proof of funds within a strict timeframe, I would proceed to bankrupting him; and

(c) he could stop this at anytime he liked by paying me my money, otherwise I would bankrupt him.

1. Mr Goss responds to this in the Goss Reply Affidavit, saying that Mr Lewis never used the words 'strict proof', and that Mr Lewis said he wanted evidence that we were moving forward, which Mr Goss has provided. He also deposes that Mr Lewis never said he would bankrupt him if he didn't pay Mr Lewis his money, and that during the conversations he had with Mr Lewis before signing the Deed, Mr Lewis never used the word 'bankrupt'.
2. Mr Pascoe deposes that on 1 December 2025, on behalf of the first plaintiff, he instructed Summer Lawyers to file the Consent Judgment and make the Application. Mr Lewis deposes that on 1 December 2025 he instructed his solicitors to file the Consent Judgment.
3. Mr Lewis deposes as follows in respect of his telephone call with Mr Goss on 3 December 2025:

Whilst I had given that instruction to file the Consent Judgment, I did not know when I spoke to Mr Goss on 3 December 2025 that the Consent Judgment had been filed with the Court that day. During this conversation, Mr Goss attempted to discuss information which is confidential information between the First to Fourth Plaintiffs and its solicitors, Summer Lawyers. As these matters were none of his business, I did not answer him. I had from the outset engaged Summer Lawyers to act in my best interests.

1. Mr Lewis also deposes that as to Mr Goss's evidence described at paragraph 31(c)(iv) above, he denies that he told Mr Goss that Summer Lawyers would not enforce the judgment.

1. It is convenient to set out the Opposing Defendants' submissions first, as the Plaintiffs' submissions were made mainly in response to those of the Opposing Defendants. Where the Opposing Defendants' oral submissions are effectively a reply to the Plaintiffs' submissions, I will describe them when setting out the Plaintiffs' submissions. I have done it this way to avoid repetition as far as possible.
2. The Opposing Defendants oppose the orders sought by the Plaintiffs, giving four reasons for that opposition, which I have set out in sections C.1 to C.4 below. The Plaintiffs submissions on those four matters are also set out in those sections.
3. Alternatively, the Opposing Defendants submit that the Application should be adjourned to 3 January 2026 on the basis that, in the main, the defences and claims referred to above accrued on 3 December 2025 (being the date on which the Plaintiffs' wrongfully made the Application or alternatively, this was the first date on which the defendants had notice that the Plaintiffs intended to wrongfully make the Application). The Opposing Defendants should have 30 days hence to draft and file an originating process and indorsement to address that wrong, by parity of reasoning with r 14.04 of the Supreme Court (General Civil Procedure) Rules 2025 (Rules) governing the time for serving a defence.
4. In summary, the Plaintiffs submit that it is in the interests of justice for the Court to reinstate the proceeding and enter the Consent Judgment, which was signed by the defendants' solicitors.
5. Further, the Plaintiffs submit that it is not in the interests of justice to allow the Application to be adjourned until 3 January 2026. The Opposing Defendants' submission is incorrect when it states that 3 December 2025 was the fist date on which the defendants had notice that the Plaintiffs intended to make this Application. The offer made on 25 November 2025 by the Plaintiffs made plain that in the event both offers were rejected or if Summer Lawyers did not hear from Wantrup & Associates by 4pm on 1 December 2025, the Consent Judgment would be filed on 2 December 2025 without any further notice.
6. At the hearing, the focus of the Opposing Defendants' submission was the summary enforcement procedure, particularly their position that they had defences/claims in respect of enforcement of the Deed which meant that the summary procedure should not be used. They summarised their position by reference to two points:

(a) there is a substantial case in opposition to enforcement of the Deed raised by the evidence which gives rise to issues of credibility which cannot be dealt with via the summary procedure; and

(b) various clauses in the Deed relied on by the Plaintiffs cannot operate as a conclusive bar to the Opposing Defendants' defences and counterclaims.

C.1 The Opposing Defendants do not consent to judgment

1. The Opposing Defendants submit that the Court should not grant the Consent Judgment as they do not consent to judgment.
2. They say that the Court can give judgment pursuant to r 59.07(1) of the Rules on agreed terms on being satisfied that the parties who are to be bound consent, and that they do not consent to judgment in the terms applied for by the Plaintiffs. They say that despite the provisions of the Deed, the Court must determine for itself whether there is in fact consent within the meaning of r 59.07. Consent within the Rules requires an inquiry as to whether the defendants consent at the time the order is sought, not at a a particular point in the past.
3. Further, the Opposing Defendants submit that the provisions of the Deed do not prevent them from adducing evidence on the issue of whether they in fact consent.

1. The Plaintiffs submit that the Opposing Defendants identify r 59.07 as the only provision empowering the Court to make the judgment sought, which the Plaintiffs submit is incorrect. The Plaintiffs seek to enforce the compromise reached in the existing proceeding, being a summary procedure approved by the Full Court in Roberts v Gippsland Agricultural and Earth Moving Contracting Co.[2] The Plaintiffs submit that in this case the following factors, as considered by the authorities and relevant to the exercise of summarily enforcing the Deed by application in this proceeding,[3] are present:

(a) the orders made by the Court on 14 August 2025 provided for a right of reinstatement by the first to fourth plaintiffs only;

(b) clause 7.2 of the Deed provided for the reinstatement of the proceeding and clause 7.3 provided for the entry of the Consent Judgment;

(c) all interested parties are before the Court;

(d) the fact of execution of the Deed and the fact of default thereunder are uncontested, and there is no dispute as to quantum;

(e) issuing of a new proceeding would cause further delay;

(f) aside from giving the defendants the requisite 2 months written notice, there has not been any delay on the part of the Plaintiffs;

(g) there is no extraneous matter for the Court to consider;

(h) the Deed does not deal with any property not raised in the suit; and

(i) the Deed does not provide for things to be done beyond the ordinary range of what the Court would order.

1. The Plaintiffs submit that the particular obligation sought to be enforced is the payment of monies by the defendants to the Plaintiffs, and to that end, the filing of the Consent Judgment. It sits squarely within the parameters of this proceeding, which sought a monetary judgment.
2. The Plaintiffs submit that the summary procedure emanating from Roberts is in accordance with the overarching purpose and obligations imposed by the Civil Procedure Act 2010 (Vic) (CPA) to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. Further, in making any order, the Court may have regard to the extent to which the parties have had the benefit of legal advice and representation. In this case, the Court ought to take into account that all defendants were represented by solicitors at the time of entering into the Deed. Mr Wantrup witnessed the execution of the Deed by the non-corporate defendants, including the execution by Mr Goss, Ms Strouzas and Mr Murphy. The Consent Judgment is signed by the solicitors at the time for each of the defendants.
3. The Plaintiffs contend that to the extent the Opposing Defendants seek to challenge the jurisdiction of the Court to make the orders sought on the basis of r 59.07 and that the Opposing Defendants no longer consent to those orders, that challenge is misconceived, for the following reasons:

(a) The Consent Judgment states that it is pursuant to r 59.06, not r 59.07. The parties have agreed upon the terms in which a judgment should be given.

(b) There is no evidence that the solicitors who executed the Consent Judgment did so without authority nor is it alleged.

(c) The Deed has been part performed in that annexure A (being the consent orders to vacate the trial, to dismiss the proceeding, for the right of the first to fourth plaintiffs to reinstate the proceeding, and for there to be no order as to costs) was signed and filed with the Court and those orders were made in that form. It is not now open to the Opposing Defendants to withdraw their irrevocable consent as contained in the Deed. The mechanism of producing the terms of settlement as conclusive evidence of an irrevocable consent to judgment is common.

(d) The notion that consent is only at a particular point in time and does not apply in the future is devoid of merit. The Deed contemplated payments being made from September 2025 until 31 March 2027 and the default provision related to all of those payments. It would be nonsensical and unbusinesslike if a party gave irrevocable consent to judgment on day 1 but could withdraw that consent on day 2 when they have defaulted in their obligations under the Deed. Further, the Opposing Defendants' submission ignores the word 'irrevocable' which means 'not to be revoked or recalled'.

(e) There is no evidence from any of the Other Defendants.

(f) The fact that the settlement agreement was signed as a deed has significance, referring to Laszczuk v Bendigo and Adelaide Bank Ltd.[4]

(g) The doctrine of estoppel by deed would apply and the unambiguous statements in the Deed must be taken as binding between the parties, and it is not open to the third, seventh and eighth defendants to adduce contradictory proof.[5] It is not now open to them to recall their consent.

C.2 Pre-contractual representations made by representatives of the Plaintiffs mean that the Consent Judgment should not be given

1. The Opposing Defendants submit that the Consent Judgment should not be given on the basis of pre-contractual representations allegedly made to them on behalf of the Plaintiffs.
2. The Opposing Defendants contend that the Goss Affidavit establishes that Mr Pascoe and Mr Lewis, as representatives/directors of the Plaintiffs, made representations to them prior to their entry into the Deed. These representations were to the effect that they would not permit a judgment to be registered without making reasonable efforts to work together with Mr Goss to come to an alternative solution; and they would not take any action which would jeopardise Mr Goss's ability to make repayments, including if he produced evidence that he was getting close to providing the repayment funds (together, Pre-Contractual Representations).
3. The Opposing Defendants submit that the provisions of the Deed as to default and 'irrevocable consent' to judgment must be read as subject to the Pre-Contractual Representations.
4. The Opposing Defendants submit that the phrase 'irrevocable consent' in clause 7.4(c) likely cannot be read literally and is therefore ambiguous. This is because the Deed provides that the Plaintiffs must provide 2 months' written notice before they can enforce on the Deed for the first instalment payment, yet the language of clause 7.4(c), which states 'that this Deed shall constitute the irrevocable consent of each of the Parties hereto to the entry of such judgment and the production of this Deed to the Court shall be conclusive evidence of all consents necessary to given [sic] effect to paragraphs 7.3(a) and 7.3(b) of this clause', is unqualified. It is said that clause 7.4(c) is ambiguous as, read literally, it does not require notice and would render clause 7.5 (the provision requiring notice of an event of default before enforcement action could be taken) nugatory if read literally.
5. According to the Opposing Defendants, because clause 7.4(c) is ambiguous, the Pre-Contractual Representations are admissible to interpret it. Alternatively, if it is not ambiguous, the Pre-Contractual Representations are still admissible as evidence of the commercial purpose of the contract, to assist in the interpretation of the clause.
6. The Opposing Defendants also submit that Mr Goss's evidence is that he produced evidence that he was getting close to providing the repayment funds, yet the Application is still made.
7. Alternatively, the Opposing Defendants submit that the Pre-Contractual Representations are admissible in proof of, and capable of founding, a number of defences and counterclaims: pre-contractual promissory estoppel; a defence or claim that the Deed ought in equity be set aside or not enforced on the basis of misrepesentation and/or unconscionable conduct; and/or a claim for misleading or deceptive conduct or unconscionable conduct under the Competition and Consumer Act 2010 (Cth) schedule 2 (Australian Consumer Law).
8. The Opposing Defendants submit that a claim for misleading or deceptive conduct under the Australian Consumer Law cannot necessarily be defeated by relying on a clause in the Deed procured by misleading or deceptive conduct, so the Plaintiffs cannot necessarily defeat such claims by relying on clause 7.3(b).
9. In this regard, it was common ground between the parties that the provisions of the Deed relating to non-reliance on pre-contractual conduct/representations and the entire agreement clause cannot be relied upon to oust the statutory claims, but they can be used as evidence which may negate an integer of such claims. Both parties referred to the Court of Appeal decision in Viterra Malt Pty Ltd v Cargill Australia Ltd.[6]
10. Counsel for the Opposing Defendants spent some time taking the Court through the passages of Viterra dealing with this issue. Counsel submitted that while this aspect of the decision in Viterra concerned s 18 of the Australian Consumer Law, it ought also to apply to s 21 of the Australian Consumer Law.
11. Further, the Opposing Defendants say that for defences or claims where detriment or loss is an essential element, Mr Goss's evidence is that the judgment sought by the Plaintiffs will result in him losing a significant amount of money by way of lost profits and wasted costs, due to the effect of the judgment on other projects he is involved with. Further, they submit that all of the defendants gave up a valuable cause of action with a real chance of success, and Mr Goss, Ms Strouzas and Mr Murphy all say that none of them would have signed the Deed had the Pre-Contractual Representations not been made.
12. Counsel for the Opposing Defendants submitted at the hearing that they were on the back foot in the negotiations, which tells against summary enforcement. It was said that the Plaintiffs have managed to achieve a $3.2 million settlement in circumstances where the defences and counterclaims raised at trial would have voided the whole loan, and the settlement was entered into at a time when the trial was imminent, the Other Defendants were under pressure, and it might be seen that they could be on the losing side. The offers made between May and August 2025 began at $2.3 million before reaching the ultimate agreement at $3.2 million. It was submitted that the Plaintiffs had superior bargaining power. Mr Goss was a layperson who did have legal advice, but legal advice cannot cure the misrepresentations.
13. The Opposing Defendants submit that the Plaintiffs' contention about the pre-contractual negotiations conflates two periods of forbearance: the period between a default in payment and the ability to enforce (ie 2 months for the first to fifth instalments); and the period after the notice period has expired. It was submitted that the conversation referred to by Mr Pascoe as set out at paragraph 40(b) above was a discussion about the second of these periods of forbearance and was not about the period between default and enforcement. In addition, the matters referred to by Mr Lewis at paragraph 42 above are not reflected in the Deed.
14. According to the Opposing Defendants, the availability of the defences and claims referred to in paragraph 66 above means that the Court ought to exercise its residual discretion not to make consent orders, as:

(a) giving judgment would run contrary to the Court's duty to avoid circuity of action;

(b) declining judgment would give effect to the overarching purpose in the CPA of facilitating the just, efficient, timely and cost-effective resolution of the real issues in dispute; and

(c) giving judgment would be manifestly unjust and the Court would be closing its eyes to potential iniquity if it gave judgment in knowledge of the defendants' potential defences and claims.

1. The Plaintiffs submit that contrary to the Opposing Defendants' submission, the Pre-Contractual Representations are not relevant to the construction of clause 7.4(c) of the Deed because:

(a) it is contrary to the parol evidence rule; and

(b) it is inconsistent with the terms of the Deed itself.

1. The Plaintiffs contend that the Opposing Defendants' submission ignores a number of clauses in the Deed, particularly clauses 13(a), (c) and (d), and clause 15.3.
2. The Plaintiffs submit that clause 7.4 and the phrase 'irrevocable consent' is not ambiguous as contended by the Opposing Defendants. Clause 7.4 states that it is further to clauses 7.3(a) and (b) of the Deed, which clauses make plain that if an event of default occurs and subject to providing the requisite notice, then the Plaintiffs were immediately entitled to apply to file the Consent Judgment. Clause 7.4(c) is further linked to clauses 7.3(a) and (b) by the closing words. It is nonsensical to read clause 7.4(c) in a vacuum and not link it to clauses 7.3(a) and (b) which both are subject to providing the requisite notice to remedy an event of default as set out in clause 7.5.
3. The Plaintiffs argue that the Opposing Defendants seek to manufacture an ambiguity to create an issue that does not exist and introduce parol evidence in the form of the Pre-Contractual Representations.
4. The Plaintiffs say that in any event, they did not seek to enter judgment immediately upon the failure by the defendants to pay the first instalment payment on 22 September 2025. They provided the 2 months written notice to the defendants as required by the Deed. Upon receipt of that notice, the defendants never wrote to the Plaintiffs or raised with them or their solicitors the alleged Pre-Contractual Representations. They never sought an injunction from the Court to prevent the Plaintiffs from enforcing the Deed. They give no explanation for their failure to comply with the Deed and make the first instalment payment.
5. Further, the Plaintiffs submit that no prior representations survive the entry by the parties into the Deed, especially where there are terms that directly contradict the Pre-Contractual Representations and even more so when the Deed contains an entire agreement clause such as clause 15.3 of the Deed.
6. The Plaintiffs submit that the offers exchanged between the parties from 14 May 2025 onwards contemplated judgment being entered after a period of notice in the event of default. Two of the offers from Mr Goss post-date the alleged Pre-Contractual Representations, which are alleged to have occurred in June and July 2025 and in the months prior to signing the Deed. After 15 July 2025, the settlement negotiations included the respective solicitors for the parties. A draft deed of settlement was forwarded to Mr Wantrup on 23 July 2025, which was further negotiated by the parties and their solicitors during late July and early August.
7. The Plaintiffs submit that it is telling that Mr Goss was aware at all relevant times that if he defaulted on the first to fifth payments for 2 months, then he agreed, in each of his offers, to 'summary judgment'. They say that it is further telling that none of the offers made by Mr Goss refer to the matters in paragraphs 25 and 26 above. Both prior to and after the alleged Pre-Contractual Representations, Mr Goss agreed to 'summary judgment' in the event he defaulted for a period longer than the notice period.
8. The Plaintiffs submit that it is improbable that the alleged Pre-Contractual Representations were made, as the Deed makes no mention of them nor is it consistent with them. The Deed is consistent with the offers Mr Goss made. Mr Goss negotiated a lengthy notice period to rectify any default before the Consent Judgment could be entered.
9. Insofar as the Opposing Defendants' alleged defences and/or counterclaims are concerned, the Plaintiffs submit the following:

(a) They rely on clause 7.3(b) of the Deed.

(b) The Opposing Defendants executed the Deed after receiving legal advice. In the Deed, they undertook, acknowledged and agreed, amongst other things, not to take any steps to prevent the Plaintiffs from seeking to enforce their rights under the Deed. The fact that legal advice was received is a factor for the Court to take into account, and the affidavits relied upon by the Opposing Defendants do not mention it.

(c) The Opposing Defendants acted on the terms of the Deed that were to their benefit, namely they agreed to the consent orders vacating the trial and thus providing them more time to pay the Settlement Sum, a sum being less than the Secured Money (at the time of the Deed, in excess of $5 million) being an amount they acknowledged that they owed.

(d) The Plaintiffs also acted on the terms of the Deed by agreeing to compromise their claims, consenting to orders vacating the trial date and sending the default notice in September 2025.

(e) There are no submissions from the Opposing Defendants as to what is to happen if the Deed were set aside, in circumstances where there has been part performance of it and orders made emanating therefrom.

In response to this submission, the Opposing Defendants say that it is not a problem that they have not outlined specific remedies. They contend that their position does not necessarily mean that the transaction (ie the Deed) is completely unwound or it could be that orders may be made that the Settlement Sum does not have to be paid.

(f) There should be evidence of reasonable precision[7] to support the Opposing Defendants' allegations, and here the Goss Affidavit is imprecise and expressed in general terms. There is no exact date when the alleged conversations took place, those conversations are all one way as what Mr Goss said is not deposed to, it is improbable that the conversations took place as they refer to the Deed, the first draft of which did not occur until 23 July 2025, and there are no file notes taken by Mr Goss of these conversations.

In response to this, the Opposing Defendants submit that it does not matter that Mr Goss did not give dates for the phone calls, because Mr Pascoe and Mr Lewis did, and what is in issue is the content of those calls. Insofar as Mr Goss refers to the Deed in those sections of his affidavit, the Opposing Defendants submit that he could be referring to a potential deed. They also say that Mr Goss is not a lawyer and should not be criticised for not taking file notes of the conversations or that any inferences should be drawn.

(g) The Goss Affidavit makes no mention of the offers he made, both prior to and subsequent to the alleged Pre-Contractual Representations, in which he agreed to 'summary judgment' being entered after a period of time to rectify any default. Nor does he mention the offers he received that contained similar provisions. There is a lack of candour in the Goss Affidavit as a consequence.

In response to this, the Opposing Defendants submit that the Plaintiffs' submission about a lack of candour is illogical as the reasons given for it do not hold. Further, it was said that there was no need for Mr Goss to mention the offers as they were irrelevant, since the existence of negotiations was already implied or represented in the Deed and because it was not necessary in the enforcement of the Pre-Contractual Representations to adduce the entirety of the negotiations where they do not found the Pre-Contractual Representations.

The Plaintiffs reject this proposition in their reply submissions on the basis that evidence regarding the offers is relevant to Mr Goss's evidence at paragraph 34 above.

(h) Arguably, the Pre-Contractual Representations are consistent with the Deed because of the 2 months' notice requirement.

(i) The Pre-Contractual Representations are inconsistent with the contemporaneous correspondence, which should be preferred to the vague and improbable evidence of Mr Goss.

(j) The Pre-Contractual Representations are vague. For example, what is meant by 'getting close' to providing the repayment funds?

(k) There are no representations said to have been made by the Plaintiffs to Mr Murphy or Ms Strouzas directly. Mr Goss is not the agent. They may have a cause of action against Mr Goss but not against the Plaintiffs.

In response to this submission, the Opposing Defendants submit that Mr Goss was negotiating, making and receiving offers which would bind all of the defendants.

(l) There is no evidence that the Opposing Defendants gave up a valuable cause of action or as to the prospects of success.

C.3 Amendment of the Deed means that no breach of the Deed has occurred

1. The Opposing Defendants submit that Mr Goss' evidence is that an amendment to the Deed has been effected, or genuine negotiations were underway to that end. They say that this evidence is capable of founding a defence that there was no breach of the Deed by the defendants since the term said to be breached had been varied, and that this should cause the Court to exercise its discretion not to make consent orders, for the same reasons as stated in paragraph 71 above.

1. The Plaintiffs submit that the Opposing Defendants' submission as to amendment of the Deed fails to consider clause 15.9 of the Deed, which provides that the Deed may be amended only in writing and must be executed by all parties. There is no such written agreement for amendment of the Deed.
2. The Plaintiffs submit that at best, the evidence reveals that the parties have had without prejudice negotiations in November 2025 which have not culminated in any amendment to the Deed and have not been signed off by all parties. The Opposing Defendants' submissions that the Goss Affidavit establishes that an amendment to the Deed has been effected is overstating the position.

C.4 Summer Lawyers effectively hold decision making power as a de facto applicant and so judgment should not be given

1. The Opposing Defendants also submit that Mr Goss' evidence founds a concern that the solicitors for the Plaintiffs, Summer Lawyers, may effectively hold decision making power as a de facto applicant, and the evidence of Mr Goss, Mr Murphy and Ms Strouzas is that none of them would have signed the Deed had they known this. This founds defences and claims as set out in paragraph 67 above, which should cause the Court to exercise its discretion not to make consent orders for the same reasons as stated in paragraph 71 above.

1. The Plaintiffs submit that this allegation and the evidence relied upon in support of it that Summer Lawyers is a de facto applicant is fanciful and speculative.

1. The gravamen of the Opposing Defendants' position as set out in their written submission is that they do not consent to the Consent Judgment or judgment being given in that form. They say that if they ever did consent, which they deny, then they no longer consent. As I apprehend it, their position is that in order for me to grant the Consent Judgment, I have to be satisfied that they now consent to it.
2. There may be something to that argument if all that is in evidence is the signed orders comprising the Consent Judgment. But that is not this case. What is in evidence is a comprehensive settlement deed, by which the defendants agreed to certain matters in order to settle this proceeding.
3. In substance, this is an application by the Plaintiffs to summarily enforce a settlement agreement by application within this proceeding. I will explain the Court's jurisdiction in this regard in a moment, but in such an application, what matters is the settlement agreement and the consent/agreement entered into at that time, not whether the defendants consent to judgment at the time the application is made or heard.
4. On 9 December 2025, after receiving the Opposing Defendants' affidavits and submissions, my Associates sent an email to the parties to inform them that the proceeding would be listed for 12 December 2025 to hear the Application and to specify the time by which the Plaintiffs were to file any reply material. In that email, on my instruction, my Associates stated that at the hearing, the parties should be in a position to address the Application in light of the Court's jurisdiction to summarily enforce a settlement agreement by application within an existing proceeding, and the parties were referred to my earlier decision in Re RM Road Services Pty Ltd (in liq) (No 2)[8] at paragraphs 39 to 44.

1. It is convenient to set those paragraphs out here. In RM Road Services, I stated:
   1. The Court has jurisdiction to summarily enforce a settlement agreement by application within an existing proceeding.
   2. This summary procedure was described in detail by Smith J in Roberts:[9]

(a) 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.

(b) 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.

(c) 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.

(d) 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.

(e) 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.

1. Further, Smith J stated in Roberts that in deciding whether justice can be done under the summary procedure the Court needs to consider a variety of matters involving questions of degree. These include the extent to which extraneous matters are involved, how substantial the questions are to be determined, to what extent questions of credibility are likely to arise, and whether pleadings and discovery may be desirable.[10] The critical question is whether the Court can be satisfied that justice can be done by summary enforcement of a settlement agreement.[11]
2. In Seachange Management Pty Ltd & Anor v Pital Business Pty Ltd,[12] the Court of Appeal said that while:[13]

...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.

43. Roberts and Seachange have been followed in numerous cases.[14]

1. In Bell v Knight 34 Langdon Road Pty Ltd, Daly AsJ reviewed the relevant authorities and succinctly stated that additional matters relevant to the question of whether a court can be satisfied that justice can be done by the summary enforcement of a settlement agreement include the following:[15]

(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.

D.2 Conditions for summary enforcement of the Deed are met

1. The conditions for exercising the Court's jurisdition to summarily enforce the Deed by application in this proceeding are met. The parties agreed that in the event of default under the Deed, the Plaintiffs could apply to the Court to have the Consent Judgment entered. There has been an unremedied event of default and all of the provisions of the Deed to enliven the right to enter the Consent Judgment have been met. Further, there are no matters dealt within the Deed which are extraneous to the suit compromised by it.
2. Nonetheless, as set out in Seachange,[16] the Court must be clearly satisfied that justice can be done via the summary enforcement procedure before utilising that mechanism. This requires careful consideration of the matters raised by the Opposing Defendants in this case.

D.3 Consideration of the Opposing Defendants' evidence

1. I am not persuaded by the Opposing Defendants' evidence, for the reasons which I will now set out.
2. First, it is passing strange that the Strouzas Affidavit and Murphy Affidavit are in identical terms, down to the content of discussions which on the face of those affidavits they had separately with Mr Goss without the other being present. In my view, those affidavits are without substance as to the matters deposed to, lack specificity, contain hearsay evidence, are conclusionary without foundation, and are self-serving. I give them little, if any, weight.
3. Second, Mr Goss's evidence requires careful scrutiny. The description he gives in his affidavit of some of the events is not always complete or accurate. In particular:

(a) I note that the indicative loan offer exhibited to the Goss Affidavit is undated but states a commencement date for the loan as no later than 12 December 2025, lists One Park Lane Developments Pty Ltd as borrower, and Mr Goss, One Park Lane Developments Pty Ltd, One Park Lane Pty Ltd and Six Park Lane Pty Ltd as guarantors, and states that following acceptance of the offer the terms will be incorporated into formal loan and security documents to be prepared by the lawyers for the Lender. The indicative offer states that the purpose of the loan is a '12-month facility with 6 months prepaid for the purpose of Loan Restructuring and Finance broking for both land and construction loan facilities in connection with the security property.' The security property is the land at Southport. The facility limit of the loan is $19,500,000.

(b) No explanation is provided in the Goss Affidavit as to how this loan will provide the funds necessary to make the first payment under the Deed, or as to whether that is permissible under the terms of the loan offer. None of the loan documents are provided and it is not stated whether they have yet been prepared.

(c) The emails and letters relied upon in respect of the matters deposed to and described in paragraph 30 above, which are all exhibited to the Goss Affidavit, reveal that, contrary to the Opposing Defendants' submissions at paragraph 84 above, no agreement as to a variation of the Deed was agreed, let alone one which would mean that the defendants had not breached their obligations under the Deed to make the first instalment payment. Even Mr Goss does not go so far as to say there was an agreement; quite properly in this regard, he simply describes what he regards as the key correspondence regarding the proposed amendment. However, his description of some of the content of the correspondence is incomplete or inaccurate. For example, Mr Lewis' email in response to his 19 November 2025 email said quite a bit more than what is described in paragraph 30(a) above. The email chain for 19 November 2025 between Mr Goss and Mr Lewis shows that Mr Goss' offer was to pay an extra $500,000 to the payment agreement if given extra time on the first payment, which could be split whichever way the Plaintiffs wished. He followed this up with a second email, saying that the only change on dates was to have the first payment default clause extended from 22 November to 22 December, with the additional $500,000 to be added to the last five payments by adding $100,000 to each of those. Mr Lewis' response in fact was as follows:

Definitely not I'm prepared to look at only on the following conditions -

Firstly the additional payment will be made when the first payment is made before 22/12/25.

Secondly the amendment to the arrangement will be subject to Summer Lawyers conditions & approval.

Finally we will want to see the appropriate documentation, eg town planning permit 7 letters of offer re facility.

I'm not sure if John & Doug have anything further to offer I have only put my terms forward.

I wouldn't have the funds to manage it on the first payment but I may be able to manage the additional $500k split $200k on the first and $300k on the 2nd would that be acceptable

Yes that would be acceptable providing the other conditions are me. [sic]

(d) Failing to mention the offers made between May and August 2025 does mean that Mr Goss' evidence is incomplete. Those offers, particularly the fact that all contained a default regime to the same effect as that contained in the Deed, are relevant to the Opposing Defendants' resistance to the Application. That can be said without accepting the Plaintiffs' proposition that there is a lack of candour in Mr Goss' evidence.

D.4 Consideration of the matters raised by the Opposing Defendants submissions

1. I am also not persuaded by the Opposing Defendants' submissions as to why I should not give the Consent Judgment, for the reasons I will now set out.

D.4.1 The Opposing Defendants do not consent to the Consent Judgment

1. The exercise of the Court's jurisdiction to summarily enforce a settlement agreement within an existing proceeding does not require the defaulting parties' consent as at the time that jurisdiction is exercised. What is required is the parties' agreement as at the time of settlement upon the terms of settlement. In this case, the Deed provides a mechanism for the making of a judgment in the event of default by containing terms including a consent to judgment in the event of default, with signed minutes of order for the judgment and the manner and circumstances in which it can be entered. Such a mechanism is very common and its commercial purpose is apparent: at the time of reaching agreement, the parties agreed to a mechanism for enforcement in the event of default which would be timely and cost-effective.
2. Accordingly, the fact that the Opposing Defendants no longer consent to the Consent Judgment is irrelevant.
3. Further, in advancing that position the Opposing Defendants are acting contrary to the terms of the Deed. In this regard:

(a) They agreed to terms in the Deed that their consent was irrevocable, and that the Deed itself was conclusive evidence of all consents necessary to give effect to the enforcement mechanism (clause 7.4(c)).

(b) They gave the irrevocable undertaking, acknowledgment and agreement in clause 7.3(b) of the Deed (see paragraph 17(c) above).

D.4.2.1 There is no relevant ambiguity in the Deed which requires the Deed to be read subject to the Pre-Contractual Representations

1. I do not accept the Opposing Defendants' submission that the phrase 'irrevocable consent' in clause 7.4(c) likely cannot be read literally and therefore that clause is ambiguous (see paragraph 63 above). In particular:

(a) there is nothing inconsistent between the obligation to provide 2 months' written notice of a default in payment before the Plaintiffs can enforce on the Deed and the Deed constituting the irrevocable consent of the parties to the entry of the Consent Judgment and being conclusive evidence of all consents necessary to give effect to clauses 7.3(a) and 7.3(b);

(b) further, the submission that clause 7.4(c) is ambiguous as it does not require notice, which would render clause 7.5 (the clause requiring notice) nugatory, is incorrect. Clause 7.4(c) does not create the right to enter the Consent Judgment: that function is performed by clauses 7.3(a), 7.4(a) and 7.4(b). Clause 7.4(c) records the parties' agreement to the Deed constituting the irrevocable consent to entry of the Consent Judgment and being conclusive evidence of consent; and

(c) relevantly, clauses 7.4(c) and 7.3(a) are expressly linked in the Deed. The relevant provisions are set out below:

7.3 If an Event of Default occurs under this Deed, and subject to providing the notice to remedy the Event of Default as set out in clause 7.5 below:

(a) [the Plaintiffs] be immediately entitled to:

(i) file the Consent to Judgment, contained in Annexure B to this Deed, in the Proceeding or mak an application for judgment to be entered in the Proceeding in favour of [the Plaintiffs] to obtain the orders as set out in the Consent to Judgment;

...

7.4 Further to clauses 7.3(a) and 7.3(b) above, if an Event of Default occurs, the Parties agree as follows:

...

(c) that this Deed shall constitute the irrevocable consent of each of the Parties hereto to the entry of such judgment and the production of this Deed to the Court shall be conclusive evidence of all consents necessary to given [sic] effect to paragraphs 7.3(a) and 7.3(b) of this clause.

1. Far from being ambiguous, the meaning of the Deed in this respect is as plain as a pikestaff. The 'irrevocable consent' in clause 7.4(c) is to the Consent Judgment being entered if the Plaintiffs are entitled to do so under clause 7.3(a), and clause 7.3(a) is expressly subject to the notice provision in clause 7.5, as the emphasised words in clause 7.3 show.
2. For these reasons, the Opposing Defendants' submissions as to the alleged ambiguity are fanciful.
3. I tend to agree with the Plaintiffs' submission that the Opposing Defendants argue ambiguity in an attempt to introduce evidence of the Pre-Contractual Representations in aid of interpretation of the Deed when such evidence is generally only admissible where ambiguity has been established or where other matters, not present here, are in play.[17] However, the Plaintiffs' submission in this regard is not a complete answer, as the Pre-Contractual Representations are admissible in respect of the defences/claims which the Opposing Defendants argue in opposition to enforcement of the Deed.
4. For completeness, I also reject the Opposing Defendants' submission that the Pre-Contractual Representations are admissible as evidence of the commercial purpose of the Deed, to assist in its interpretation. The meaning of the Deed and its commercial purpose are plain from the terms of the Deed and no assistance in interpreting it is required. The parties entered into the Deed so as to compromise the proceeding and bring an end to their protracted litigation, on the terms set out in the Deed. Those terms included an obligation on the defendants to pay the Settlement Sum, in instalments on specified due dates, as well as specific provisions regarding enforcement of that obligation. Rather than assisting in discerning the commercial purpose of the Deed, the Pre-Contractual Representations have the opposite effect, as they would serve to negate the very thing the parties had bargained for.

D.4.2.2 The Pre-Contractual Representations, if made, do not prevent use of the summary enforcement procedure

1. In my view, the Opposing Defendants' position that they have defences or claims in opposition to the enforcement of the Deed, based on the Pre-Contractual Representations, such that the summary enforcement procedure is inappropriate and a full trial is required, must be rejected.
2. First, the evidence relied on by the Opposing Defendants regarding the Pre-Contractual Representations is insufficient to satisfy me that the interests of justice require a full trial on the issue.
3. In addition to the matters referred to in section D.3 above, Mr Goss' evidence as to the Pre-Contractual Representations lacks specificity.

(a) For example, Mr Goss deposes that the alleged representations by Mr Pascoe were made on at least 4 occasions in June and July 2025. What was the substance of negotiations at that point? Was the agreement in contemplation at that time the same as the one ultimately entered into? While the Pascoe Affidavit and the Lewis Affidavit assist Mr Goss in this regard, by giving some precision to the timing of the discussions, I do not accept the Opposing Defendants' submission that any lack of specifics was due to being rushed in preparing their evidence.

(b) By way of another example, Mr Goss deposes that the alleged representation by Mr Lewis (see paragraph 26 above) was made 'in the months prior to the plaintiffs signing the Deed'. When was it made? In what context? Further, it is unclear why Mr Goss seems to think it significant that it was made before the Plaintiffs signed the Deed - I would have thought that the timing of the representation and the defendants signing the Deed was likely to be more relevant. If this reference was an error, then it was not corrected.

1. Mr Goss' evidence as to the Pre-Contractual Representations is also unconvincing and does not go so far as to establish the representations in the terms relied upon. In this regard:

(a) It is implausible that the conversations with Mr Pascoe in June and July 2025 deposed to by Mr Goss referred to 'the Deed'. Mr Goss defines the Deed at paragaph 5 of the Goss Affidavit as the one he signed on 10 August 2025 and then he uses that defined term when describing the conversations with Mr Pascoe. The evidence establishes that there was no deed, either in draft or as ultimately executed, until 23 July 2025. Speculation by counsel for the Opposing Defendants as to what Mr Goss may have meant when using the term 'the Deed' when describing his conversations with Mr Pascoe was just that - speculation.

(b) The various offers made between May and August 2025, culminating in the draft deed of 23 July 2025 and the Deed as ultimately executed, all contemplated a default regime whereby judgment could be entered to enforce the agreement reached if there was a default in payment which went unremedied for a specified period of time. While the amount of the settlement sum and the period of notice differed between some of the offers, the substance of the regime did not. While I accept the Opposing Defendants' submission that one would not necessarily expect pre-contract representations to be included in the written agreement, I think that where the Deed itself provides specific requirements for enforcement that reflect conditions sought by the Opposing Defendants (such as the lengthy notice period), one would generally expect the provisions in the written agreement to reflect rather than contradict the alleged representations. The Opposing Defendants' submission that the agreement was reached in urgent circumstances and that this explains why the Deed does not reflect the Pre-Contractual Representations cannot be accepted. The relevant provisions had been in contemplation, in substantive terms, for months, and the draft deed circulated on 23 July 2025 contained the same default provisions as those in the final Deed.

(c) If Mr Pascoe made the representations attributed to him, and if Mr Goss believed that this reflected the real situation between them, how is it plausible that the defendants then entered into the Deed, where that Deed contained clear and strict provisions that were the antithesis of those alleged representations? What would be the point of the Deed?

(d) Even if the representation attributed to Mr Lewis was made, the terms of the Deed as entered into do not necessarily contradict it. The fact that 2 months' notice of failure to make an instalment payment was required before enforcement action (including entering the Consent Judgment) could be taken is not inconsistent with not taking action on late payment if given evidence that Mr Goss was getting closer to providing the repayment funds. Two months after default before enforcement action can be taken would enable this representation to be met.

(e) The same can be said of the statements attributed to Mr Pascoe.

(f) It is telling that at no stage prior to notification that the Plaintiffs had made the Application did the Opposing Defendants make any mention of any Pre-Contractual Representations, that the Plaintiffs were not entitled to enter the Consent Judgment, that they had claims/defences to enforcement, or that the Deed was unenforceable. The default notice sent by Summer Lawyers on 23 September 2025 contained a statement that if the default was not remeded by 24 November 2025, then the Plaintiffs would enforce the Deed, including by filing the Consent Judgment. However, nothing was said about the Pre-Contractual Representations or the alleged defences/claims based on them in response. More importantly, none of these matters were raised by the Opposing Defendants in the period after the 2 months' notice expired, despite the terms of Summer Lawyers' 25 November 2025 letter (see paragraph 30(c) above). I raised this at the hearing, and counsel for the Opposing Defendants submitted that they may not have fully appreciated their rights as a result of the misrepresentations. Counsel also said that to the extent that submission was speculative or inferential, that was something upon which Mr Goss could be cross-examined if there was a trial so as to ventilate the issue. Nor do I accept, as it was submitted, that it would only be once Mr Goss was challenged on his evidence because he did not raise these matters that he could then proffer the explanation. I reject these submissions. If the Opposing Defendants had an explanation for not raising these matters then they could have adduced evidence about them. They did not. Further, I do not accept the submission that their failure to do so is explained by the lack of time to prepare their evidence, for which counsel relied on Blat[18] v Archer.18

In my view, not raising any of these matters until after the Application was made indicates that the Pre-Contractual Representations and the alleged defences/claims are a recent invention so as to resist summary enforcement. The same can be said of the other 3 reasons given in opposition to the Application.

1. Thus, I do not accept that Mr Goss's evidence is sufficient to establish the Pre-Contractual Representations as articulated by the Opposing Defendants (see paragraph 61 above). As I have pointed out, the evidence adduced by the Opposing Defendants does not unequivocally give rise to the Pre-Contractual Representations. In my view, the statements attributed to Mr Pascoe and Mr Lewis by Mr Goss are consistent with there being a lengthy notice period between default in payment and the right to enforce the Deed. On the face of both of Mr Goss's affidavits, those statements are consistent with the terms of the Deed. Further, I think the Opposing Defendants' position is implausible, for the reasons set out above.
2. Now, the Opposing Defendants may argue that the evidence should be tested by a full trial on the question, but if their own affidavit evidence is unconvincing, why does it require further testing? It was up to the Opposing Defendants to adduce sufficient evidence to persuade the Court that summary enforcement would be unjust, and they have failed to do that. It is not enough to seek to resist summary enforcement on the basis of inadequate evidence and say they should be given an opportunity to adduce further evidence in a trial.
3. The Plaintiffs have adduced evidence regarding the conversations between Mr Goss and each of Mr Pascoe and Mr Lewis which contradicts that of Mr Goss in some respects. I have not relied on the evidence in the Pascoe Affidavit and the Lewis Affidavit regarding their conversations with Mr Goss in reaching my views in respect of the Pre-Contractual Representations. If it were necessary to weigh the differing accounts of disputed conversations against each other in order to determine the Application, then that would tend to suggest that a full trial where each of the witnesses can be cross-examined was necessary. However, in circumstances where the Opposing Defendants' own evidence, even if accepted, was insufficient, then the fact that there are differing accounts of the conversations is of no consequence. Establishing the Pre-Contractual Representations is a vital first step in any claim based on promissory estoppel, misrepresentation, or misleading or deceptive conduct.
4. Even if Mr Goss' evidence was sufficient to establish that the statements he relies upon give rise to the Pre-Contractual Representations relied upon, that is not enough to establish that defences/claims to enforcement exist. Crucially, all of the defences/claims relied upon by the Opposing Defendants have numerous elements to them which are barely, if at all, addressed.
5. The terms of the Deed (in particular, clause 7.3(b)(iii), (iv) and (v)) tend to preclude the Opposing Defendants from seeking to advance the case they now seem to wish to do. Further, there are other terms of the Deed which preclude reliance on the Pre-Contractual Representations, in particular clauses 13 and 15.3 (see paragraph 19(a) and (b) above).
6. Now, such provisions are unlikely to be sufficient to oust, at a minimum, the statutory claims relied on by the Opposing Defendants, for the reasons set out in Viterra and summarised at paragraph 68 above. Viterra establishes this in respect of s 18 of the Australian Consumer Law, and for the purposes of the Application only, I am prepared to assume that it applies also to s 21.
7. While those provisions do not oust the statutory claims, they can be used as evidence to negate an integer of such claims. In circumstances where the terms of the Deed are unequivocal as to the manner in which it may be enforced, those provisions will be difficult for the Opposing Defendants to overcome in terms of establishing reliance on the Pre-Contractual Representations. The documentary evidence as to the offers made between May and August 2025, many of which were made by the Opposing Defendants, in which Mr Goss himself included as a condition that 'summary judgment' could be entered against him if the agreed notice period expired without a default in payment being remedied, is a significant obstacle in the Opposing Defendants' path.
8. Further, there is no evidence to support an unconscionable conduct claim, either in equity or pursuant to the Australian Consumer Law. There is nothing in either of Mr Goss' affidavits or those of Mr Murphy and Ms Strouzas to suggest, let alone establish, a special disadvantage or that the Plaintiffs took advantage of such special disadvantage. A submission was made about the Opposing Defendants being under pressure, or having unequal bargaining power, but the only basis for that submission was based on alleged inferences from: the tone of Mr Lewis' email of 15 July 2025 (see paragraph 39(b) above); the increasing imminence of trial; and the fact that the payment increased with each offer. This was a very flimsy submission and I do not accept it.
9. Insofar as the matter canvassed at paragraph 83(e) above is concerned, I do not accept the Opposing Defendants' submissions. For example, even if the Pre-Contractual Representations are established and the other elements of a promissory estoppel claim were made out, all that the Court is likely to do is hold the Plaintiffs to the representation. The alleged representation wasn't that the defendants did not have to pay; it was that it would not be enforced straight away or without time to the defendants or an opportunity to show they were getting close to making payment. As I pointed out during argument, equity fashions the remedy in order to deal with the inequity that it is trying to remedy, and equity is unlikely to go further than is necessary than to deal with the effects of what is alleged to be the inequitable conduct.
10. Finally, as a matter of completeness, I accept the Opposing Defendants' submission that estoppel by deed does not operate here to oust equitable or statutory claims. I have not relied on that doctrine in coming to my decision about summary enforcement of the Deed.

D.4.3 The Deed has been amended such that there has been no breach

1. The Opposing Defendants' submission that the Deed has been amended such that there is now no breach of the obligation to make the first payment under it can be shortly rejected. The evidence relied on for this does not withstand scrutiny: it does not establish that there has been an amendment to the Deed. At best, there were negotiations about a possible amendment which never resulted in an agreement. There is nothing in the evidence about the alleged amendment which justifies a refusal to summarily enforce the Deed, as there is no proper basis for an allegation that the Deed has been amended which requires a full trial on the issue.

1. The Opposing Defendants' submission about the role of Summer Lawyers, as set out in paragraph C.4.1 above, can also be shortly rejected. Mr Goss's evidence about the role of Summer Lawyers does not provide an adequate foundation for a concern that Summer Lawyers may effectively hold decision making power as a de facto applicant.
2. Insofar as the matters in paragraph 30(a) are concerned, it is unclear whether Mr Lewis' reference to Summer Lawyers' approval in the context of a proposal to amend the Deed is that the Plaintiffs had to get Summer Lawyers' approval to amend the Deed (which I doubt) or that the Plaintiffs would want Summer Lawyers' approval on the form of the amendment (whch is more likely, particularly given the reference to 'Summer Lawyers conditions & approval'). It is also likely that the Plaintiffs would be wanting to get legal advice. But even if I am wrong about what Mr Lewis was referring to, none of that rises as high as Summer Lawyers having decision making power and being a de factor applicant.
3. Insofar as the matters referred to in paragraph 31(b) are concerned, those matters go nowhere near providing a proper foundation for the alleged concern about Summer Lawyers' role. That Mr Lewis said he did not know anything about the electronic filing reveals very little. Mr Goss gives no detail as to what the electronic filing notice was or that he gave any detail about it to Mr Lewis. Mr Lewis saying that he did not know what Summer Lawyers had filed does not establish that they were acting without authority. Mr Goss says that he asked if Summer Lawyers were making the decisions and that Mr Lewis did not answer that. That is no proper basis for an inference that Summer Lawyers were making the decisions. In fact, if Mr Goss' description of his phone call with Mr Lewis on 3 December 2025 is accurate, any reasonable inference likely goes the other way. Further, there is nothing in Mr Goss' description of his phone call with Mr Lewis on the following day that provides a foundation for the alleged concern about Summer Lawyers' role, and Mr Goss does not rely on that call as such a foundation.
4. In her affidavits, Ms Adoranti deposes that she is authorised to make the affidavit on behalf of the Plaintiffs. Mr Goss' suspicions derived from little more than his questions of Mr Lewis which went unanswered are no basis to cause the Court to go behind an affidavit made by an officer of the Court. Further, in this regard, clause 7.4(b) of the Deed agreed that in the event of an unremedied event of default, the Plaintiffs could apply for the entry of the Consent Judgment by the filing of an application for judgment and an affidavit by a solicitor acting for the Plaintiffs. What has occurred here is precisely what the parties to the Deed agreed to.
5. The Opposing Defendants' submissions do not identify with any further clarity what the complaint is about Summer Lawyers' role, let alone why that role, if established, is a reason why I should not exercise my discretion to summarily enforce the Deed. I see no proper basis for this submission and do not regard it as a reason to refuse to summarily enforce the Deed.

D.5 Whether to utilise the summary enforcement procedure

1. In light of the above, it follows that it is appropriate to use the summary procedure so as to enforce the Deed, rather than require the plaintiffs to instead commence a new proceeding and for the parties to go to a full trial.
2. In particular, I am satisfied that the principles set out in the authorities (summarised at paragraph 93 above) regarding when it is appropriate to summarily enforce a settlement agreement within the existing proceeding are met. In my view, justice can be done by summary enforcement of the Deed.
3. In this regard, I am satisfied that:

(a) there are no extraneous matters, or matters unconnected with this proceeding, involved; the Deed does not go beyond the ordinary range of what a court would order in the proceeding; its enforcement does not involve giving effect to equities of a different nature to those involved in the proceeding; and the parties to the Deed were parties to the proceeding;

(b) the Deed relates solely to matters in the proceeding;

(c) there is no substantial question to be determined as to the terms of the Deed. The question of alleged ambiguity and of the alleged amendment of the Deed can be dealt with through the summary procedure;

(d) there is no substantial question as to the enforceability of the Deed, as the Opposing Defendants' own evidence is insufficient to properly found the challenge to the Deed based on the alleged Pre-Contractual Representations and the defences/claims which it is said they give rise to;

(e) given that I have relied only on the Opposing Defendants' evidence as to disputed conversations and on the documentary evidence, questions of credit do not arise and cross-examination is not required;

(f) procedural steps such as pleadings and discovery are unlikely to be necessary or desirable. The parties have been able to clearly articulate their positions and adduce evidence, including documents, without the need for pleadings or discovery; and

(g) turning to the factors referred to in Bell:

(i) clauses 7.2, 7.3(a), 7.4(a) and 7.4(b) of the Deed provide for reinstatement of the proceeding and entering judgment for the balance of the Settlement Sum;

(ii) all interested parties were given notice of the Application and had the opportunity to be before the Court;

(iii) to the extent there were factual disputes between the parties, the resolution of those have been achieved in the manner referred to in sub-paragraph (e) above and so that resolution does not turn upon the credibility of witnesses;

(iv) requiring a new proceeding to be commenced with a full trial would cause unnecessary delay and further expense; and

(v) there has been no delay on the part of the Plaintiffs in seeking summary enforcement.

1. It is simply unnecessary for there to be a full trial to determine the enforceability of the Deed. The parties were able to, and did, canvass all of the issues arising from the Opposing Defendants' resistance to the Application. There is no unfairness in determining the Application on a summary basis. Not only can justice be done by determining it in that way, I consider it would be unjust not to. The parties reached an agreement to compromise the proceeding and avoid a trial, by which the Plaintiffs agreed to accept and the defendants agreed to pay less than the Plaintiffs claimed in the proceeding, and by which the parties agreed to the requirements for enforcing the Deed. There is no reason why they should not now be held to their bargain, since none of the reasons advanced by the Opposing Defendants to the contrary have been accepted. To deny the Application would be the very opposite of fulfilling the overarching purpose set out in the CPA.
2. For the same reasons, the Opposing Defendants' alternative position (see paragraph 49 above) is rejected. That argument provides no basis for adjourning the Application. Rather, it is an argument against using the summary enforcement mechanism, which I have rejected for all of the reasons set out above.

1. The Opposing Defendants made no submission as to the form of orders or concerning interest and costs I should make if I decided in favour of the Application.
2. In conclusion, for all of the reasons set out in section D above, I am satisfied that it is appropriate to summarily enforce the Deed by making the orders as consented to by the parties in the Deed, amended so as to reflect the interest calculations as per paragraph 25 of the Adoranti Affidavit. Interest on the sum of $3,200,000 calculated at 14% per annum (being the current penalty interest rate of 10% plus 4%) equates to the amount of $1,227.40 per day. There are 87 days between 22 September 2025 and 18 December 2025. Hence the interest amount pursuant to the orders as agreed between the parties is $106,783.80, being $1,227.40 multiplied by 87.
3. Accordingly, the following orders will be made:

(a) The proceeding be reinstated for the purpose of dealing with this application.

(b) The defendants pay the first to fourth plaintiffs:

(i) the sum of $3,200,000.00; and

(ii) interest on the amount of $3,200,000.00 from 22 September 2025 to 18 December 2025 at the rate as fixed by s 2 of the Penalty Interest Rates Act 1983 (Vic) plus 4% per annum, namely the sum of $106,783.80.

(c) The defendants pay to the first to fourth plaintiffs' interest, after 18 December 2025, on any judgment amount pursuant to the prescribed interest rate pursuant to s 101 of the Supreme Court Act 1986 (Vic) as fixed by s 2 of the Penalty Interest Rates Act 1983 (Vic).

(d) The defendants pay the first to fourth plaintiffs' costs of this proceeding, including the plaintiffs' costs of and incidental to the application for judgment and the entry of such judgment, to be taxed on an indemnity basis in default of agreement.

URBAN CUBE PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (ACN 134 535 523)

[1] That amount assumes the date of judgment would be 3 December 2025, the same date as the Adoranti Affidavit. Since judgment was not given on that date, the interest payment would need to be updated using the daily rate of $1,227.40 per day.

[2] [1956] VicLawRp 21; [1956] VLR 555 (Roberts).

[3] I will address these authorities later in these reasons.

[4] [2020] VSCA 17, [38]-[41].

[5] Greer v Kettle [1938] AC 156, 171 (Lord Maugham).

[6] (2023) 74 VR 1 (Viterra), [379] (Sifris, Walker and Whelan JJA).

[7] Relying on Barratt v Rees [2014] VSCA 327, [60].

[8] [2025] VSC 382 (RM Road Services).

[9] Roberts, at 562-4 (citations omitted).

[12] [2009] VSCA 139 (Maxwell P and Nettle JA) (Seachange).

[14] By way of example, see Ugrinovski v Naumovski [2018] VSC 437; O'Brien and Fourth Taljan Pty Ltd v O'Brien & Nicholls Pty Ltd and Ors [2001] VSC 411; Barratt v Rees [2014] VSCA 327.

[15] [2022] VSC 497, [57] (citations omitted) (Bell).

[17] Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104, [48] (French CJ, Nettle and Gordon JJ); Siemens Gamesa Renewable Energy Pty Ltd v Bulgana Wind Farm Pty Ltd [2020] VSC 126, [87], [88] (Riordan J).

[18] [1774] EngR 2; (1774) 1 Cowp 63; 98 ER 969.