Stapler Pty Ltd in its capacity as trustee for the Stapler Trust No. 1 v Raheb Property Holdings Pty Ltd in its own right and as trustee for the Robin Raheb Family Trust

Legislation Cited: Bankruptcy Act 1966 (Cth), ss 58(1), 116(1)(b)
Civil Procedure Act 2005 (NSW), s 66
Conveyancing Act 1919 (NSW), s 111(2)(b)
Real Property Act 1900 (NSW), s 57(2)(b)

Cases Cited: Bizcap Au Pty Ltd v Vo [2025] NSWSC 518
Hewett v Court (1983) 149 CLR 639
Investment Group Australia Pty Ltd v Vinrec Australia Pty Ltd (in liq) [2025] NSWSC 612
King Investment Solutions v Hussain (2005) 64 NSWLR 441; [2005] NSWSC 1076
Moss v Eaglestone [2011] NSWCA 404
Stewart v Atco Controls Pty Ltd (in liq) (2014) 252 CLR 307

Category: Principal judgment

Parties: Stapler Pty Ltd ACN 668 665 361 in its capacity as trustee for the Stapler Trust No. 1 (Plaintiff)
Raheb Property Holdings Pty Ltd ACN 161 005 312 in its own right and as trustee for the Robin Raheb Family Trust ABN 73 346 478 759 (First Defendant)
Robin Raheb (Second Defendant)
National Australia Bank Limited ACN 004 044 937 (Third Defendant)
Lantrak NSW Pty Ltd ACN 616 535 847 (Fifth Defendant)
Christopher Sarkis Raheb (Seventh Defendant)
Richmond Funds Management Pty Ltd ACN 657 635 393 (Eighth Defendant)
Koifield Pty Ltd ACN 627 608 584 (Ninth Defendant)
Syndicate Mortgage Securities Pty Ltd ACN 053 995 243 (Tenth Defendant)
Danny Tony Vrkic (Eleventh Defendant)

Representation: Counsel:
B Koch (Plaintiff)
P Farrell (First, Second and Seventh Defendants)
Solicitors:
William James Law (Plaintiff)
Jeresyn Legal (First, Second and Seventh Defendants)

File Number(s): 2024/269972

Publication restriction: Nil

JUDGMENT

1. HIS HONOUR: By its amended statement of claim filed on 24 March 2025, the plaintiff seeks the recovery of $450,000.00, together with interest and costs, advanced pursuant to the terms of a loan agreement entered into on or about 21 June 2022 between the former trustee of the Stapler Trust No. 1 and Raheb Property Holdings and Ms Raheb. The plaintiff also seeks an order for the judicial sale of the property located at ** The Grand Parade, Brighton-le-Sands.

Background

2. At all relevant times, Ms Raheb has been the sole registered proprietor of the property. On 1 October 2024, her interest in it vested in the eleventh defendant, her Bankruptcy Trustee.

3. In addition to Raheb Property Holdings, Ms Raheb and her Bankruptcy Trustee, the following parties remain as defendants in the proceedings:

(a) The National Australia Bank, the third defendant, is the holder of the first registered mortgage dated 18 May 2017 over the property. The NAB has filed a defence in the proceedings. The only issue upon which the NAB may seek to be heard is the form of any relief granted concerning the sale of the property. (b) Lantrak, the fifth defendant, lodged a caveat on the title to the property on 25 October 2021, securing sums owed to it by Ms Raheb pursuant to a guarantee. Lantrak filed an appearance in these proceedings on 3 September 2024. (c) Mr Raheb, the seventh defendant, lodged a caveat on the title of the property on 19 October 2022 claiming a beneficial interest on the basis that Ms Raheb holds her interest in the property as trustee for him pursuant to a constructive, implied or resulting trust. Mr Raheb has filed a defence in the proceedings. (d) Richmond, the eighth defendant, entered into a loan agreement with Raheb Property Holdings and Ms Raheb on 10 May 2024 and lodged a caveat on the title to the property on 13 May 2024. Richmond assigned its debt and security to Koifield, the ninth defendant. There is no evidence of that assignment before me. (e) Syndicate, the tenth defendant, lodged a caveat on the title to the property on 10 March 2025 claiming an interest as chargee pursuant to an agreement between it and Ms Raheb as guarantor dated about March 2021.

4. Notwithstanding orders made by Pike J on 2 May 2025, no evidence has been served by any defendant.

Relevant facts

5. The plaintiff has been the trustee of the Stapler Trust No. 1, previously known as the WholeCap Debt Fund No. XIV Trust 1, since 23 June 2023. Prior to 23 June 2023, the trustee of the Trust was WholeCap Debt Fund No. XIV Pty Limited.

6. On or about 21 June 2022, WholeCap entered into a loan agreement with Raheb Property Holdings as borrower and Ms Raheb as guarantor.

7. Pursuant to cl 2 of the loan agreement, WholeCap agreed to provide an advance to Raheb Property Holdings up to $450,000.00.

8. By cl 6 of the loan agreement, Raheb Property Holdings was required to repay the principal amount of the advance together with any accrued but unpaid interest and all other amounts outstanding but unpaid on the termination date as defined.

9. By cl 8.1 of the loan agreement, Ms Raheb irrevocably and unconditionally guaranteed to WholeCap the punctual performance by Raheb Property Holdings of all of its obligations under the loan agreement and irrevocably and unconditionally undertook immediately, on demand by WholeCap, to pay any amount due as if she were the borrower.

10. The obligations of Raheb Property Holdings and Ms Raheb pursuant to the loan agreement were secured by a General Security Deed made on 21 June 2022, by which each of these defendants granted a security interest to WholeCap over all of their present and after-acquired property.

11. In addition, Ms Raheb granted an unregistered mortgage over the property dated 21 June 2022 to WholeCap in a form suitable for registration under the Real Property Act 1900. The mortgage secured all amounts owing and payable by Ms Raheb to WholeCap, including pursuant to the loan agreement. Ms Raheb was required punctually to pay all such amounts when due. Upon an event of default, defined to include any failure to pay a sum on time, cl 6.1 provided that the mortgage could be immediately enforced.

12. WholeCap’s powers upon enforcement included the exercise of any powers that may be exercised by a receiver.

13. WholeCap’s interest pursuant to the mortgage was immediately recorded on the title of the property by caveat dated 22 June 2022. When the plaintiff became the trustee of the Stapler Trust No. 1, the name of WholeCap as the caveator was changed to the plaintiff.

14. The advance of $450,000.00 took place on 22 June 2022. Accordingly, the termination date under the loan agreement was 22 September 2022. Raheb Property Holdings failed to repay the loan by that date. On 5 October 2022, WholeCap demanded repayment of that amount plus accrued interest. No payment was made in response to that demand.

15. On 4 July 2024, the plaintiff made a further demand for amounts owing under the loan agreement from Ms Raheb. No payment was made in response to that demand.

Evidence

16. The plaintiff relies upon the following evidence:

(a) The affidavits of Monika Elizabeth Harrington sworn on 30 August 2024 and 12 June 2025. (b) The affidavit of Timothy Peter Andrews affirmed on 12 June 2025. (c) The affidavit of Leigh Bridges affirmed on 16 October 2025. (d) Documents at pages 108–589 of the court book.

Application to vacate the hearing

17. The several matters set forth in the preceding paragraphs represented the state of the proceedings at all times up to and including 3 March 2026. The hearing of the substantive issues was due to commence before me on 4 March 2026 with an estimate of two days. On that day I received notice of an application from Raheb Property Holdings and Ms Raheb by notice of motion which sought the following orders:

18. Pursuant to s 66 of the Civil Procedure Act the hearing set down for 4 and 5 March 2026 be vacated.

19. The first and second defendants pay the costs of the plaintiff thrown away of the hearing up to and including 4 March 2026.

20. First and second defendants have leave to file and serve a defence on a date ordered by the Court.

21. The application was supported by affidavits from the following deponents:

(a) Joe Nasr sworn 3 March 2026. (b) Robin Raheb sworn 3 March 2026. (c) Robin Raheb sworn 5 March 2026.

19. Raheb Property Holdings and Ms Raheb also tendered a proposed defence upon which they each intended to rely in the event that their application were to succeed.

20. Having regard to the way in which Raheb Property Holdings and Ms Raheb have approached these proceedings to date, four principal issues would appear to arise:

21. Have Raheb Property Holdings and/or Ms Raheb provided a satisfactory explanation for their failure to defend the proceedings or for the delay in bringing their application to vacate the hearing?

22. Do the applicants on the motion have a bona fide defence to the plaintiff’s claim?

23. Where does the balance of convenience lie between letting the applicants in to defend the proceedings and any prejudice that may be thereby occasioned to the plaintiff in denying its right to enforce its security?

24. What is the significance, if any, of the applicants’ offer to pay the plaintiff’s costs having regard to Ms Raheb’s acknowledgment that she has no funds with which to do so?

Delay

21. The plaintiff’s predecessor entered into the loan agreement with Raheb Property Holdings and Ms Raheb on 21 June 2022. An event of default occurred three months later when the date for repayment of the principal sum passed without payment being made. These proceedings were commenced by statement of claim filed on 23 July 2024. The amended statement of claim was filed on 24 March 2025.

22. According to his affidavit sworn on 3 March 2026, Joe Nasr, solicitor, is “the solicitor for the first and seventh defendants in these proceedings”. When the proceedings commenced before me, Mr Farrell of counsel, who was instructed by Mr Nasr, announced his appearance for those defendants, as well as Ms Raheb. Ms Raheb’s 3 March 2026 affidavit is witnessed by Mr Nasr. All her affidavits have been prepared by Mr Nasr’s firm. The orders sought in the notice of motion to vacate the hearing date and to file a defence are sought by Raheb Property Holdings and Ms Raheb. Notwithstanding that fact, Mr Nasr is somewhat curiously described on the notice of motion only as the legal representative of Raheb Property Holdings and Mr Raheb. A number of references in Ms Raheb’s first affidavit, which is extracted later in these reasons, suggests otherwise.

23. Mr Nasr’s affidavit contains the following paragraphs read by the applicants in support of their explanation for the delay in seeking to vacate the hearing:

“1. I am the solicitor for the first and seventh Defendants in these proceedings.

…

3. I first became involved in this matter around March 2025. At that stage, I began reviewing the background and getting up to speed with the issues at hand.

4. In early April 2025, I was faced with a major health crisis and had to undergo a quadruple heart bypass. This was entirely unexpected and required immediate hospitalisation, followed by a lengthy recovery. I was away from work for about three months, only managing to return in mid-July 2025 after extensive rehabilitation and medical care...

5. While I was recovering, my colleague Mr Gareth Burke took over responsibility for this matter. Gareth did what he could to keep things ticking over, but unfortunately, we were hampered by not having full instructions from our clients. This meant that, despite his efforts, there was little meaningful progress during my absence.

6. When I returned to work in July 2025, I reached out to Robin Raheb (Azizi), the former director of the first defendant, to try to get things moving again. Robin explained to me, in effect, that she was unable to focus on this matter at the time because her son … was experiencing serious medical issues.

7. After returning to work in mid-July 2025, I also had to manage a significant transition within the firm. At the end of July, Mr Gareth Burke, who had been handling this matter during my absence, left his employment with us and relocated back to the United States. As a result, I was left to take over Gareth's files in addition to catching up on my own matters that had accumulated during my recovery from heart surgery. This added to the workload and further impacted my ability to progress this matter as efficiently as I would have liked.

8. Then, in November 2025, I suffered the sudden loss of my first cousin, who was also a solicitor with his own practice in the city. His passing was a shock and I became involved in helping to wind up his practice and deal with matters relating to his estate. This was a difficult period for me personally and professionally, and as a result, I was not able to give my own matters, including this one, the attention they required for about four to five weeks leading up to Christmas.

9. In January 2026, I underwent surgery to repair a completely torn and retracted rotator cuff in my shoulder. The operation was quite significant and left me in a sling for the last five weeks. My ability to attend the office was limited and depended on how much pain I was in on any given day. I did my best to keep up with urgent matters, but my capacity was reduced…

10. Most recently, in late February 2026, I had another medical episode at home. Due to the blood pressure medication I have been on since my heart surgery, I fainted while getting up from the lounge and hit the back of my head. I spent the day in emergency and was kept in hospital overnight for monitoring. Since then, I have only managed to attend the office once or twice, and have otherwise been working from home as best I can, despite still experiencing dizzy spells...

11. On Thursday 26 February 2026, as we were preparing this application, the previous Counsel engaged withdrew from the matter. This last-minute development required us to urgently seek alternative arrangements, which further complicated and delayed the process of finalising and filing this application. Mr Paul Farrell accepted the brief to appear in this matter late on Friday evening.

12. I would have preferred to make this application to vacate much earlier. However, the combination of my personal and health challenges, together with the lack of comprehensive instructions from our clients, has made it difficult to progress the matter as I ordinarily would. These circumstances have unfortunately contributed to the delays experienced in this matter.”

24. Ms Raheb’s 3 March 2026 affidavit contains the following paragraphs:

“5. Although I don't recall the precise date, at some point around late September 2024, Christopher Raheb, my ex-husband who is the seventh Defendant in these proceedings, called me to notify me of the proceedings. He said words to the effect of, ‘Robin they have started proceedings against all of us’.

6. Once I found out about the proceedings, I began looking for all the loan documents that I had, including any email and text message correspondence that I had regarding the loan. Unfortunately, I could not find most if any of the documents in my personal records.

7. After about a week of searching through my personal records, I decided to contact our solicitor that acted for us throughout these transactions, Mr Nathan Buckley. However, I did still owe Mr Buckley money for work he had completed and since I did not receive the loan money, I had no way to pay him. This did hinder Mr Buckley from helping us and providing any documents.

8. On or about 1 October 2024, I filed for bankruptcy as a result of these proceedings. I was in arguments with lnfrabuild who provided steel for our former Marrickville site, the Marrickville Developer refused to pay lnfrabuild, so they chased me for payment as I had given a personal guarantee. I had no money to pay them so decided to file for bankruptcy before they made me bankrupt as I wanted to choose my Trustee…

9. On or about 13 March 2025, I instructed Mr Joe Nasr of Jeresyn Legal to act for Raheb Property Holdings. Pty Ltd, the first defendant in these proceedings, in which I was the director of until I was made bankrupt.

WHY I STOPPED ENGAGING IN PROCEEDINGS

10. Shortly after I retained Mr Nasr, I stopped engaging in these proceedings.

11. On or about April 2025, my son … began experiencing tinnitus, progressive hearing loss, vertigo which led to him constantly losing his balance and falling down.

12. On or about May 2025, after constant testing and doctors’ appointments, my son was rushed to hospital. At this point in time, [his] loss of hearing had travelled from the left across to the right ear…

13. On or about 2 May 2025, [my son] kept complaining to me that the symptoms were getting worse and it was harder to hear. So I said words to the effect, of ‘ok, get dressed, let’s go to the doctor’. I took [him] to Always Healthcare in Cessnock. The treating doctor gave [him] referrals for diagnostic imaging.

14. On or about 5 May 2025, I took [my son] to have the imaging done at a clinic, these results were given to me within a couple of hours.

15. On or about 9 May 2025, I took [my son] to the emergency department at St George Hospital as he kept saying to me words to the effect of ‘mum I cannot take it anymore, what is happening’. [He] was discharged later that day. My son was first diagnosed with Dandy Walker Syndrome as doctors found fluid on his brain. They were still unsure what was causing the loss of balance and hearing…

16. On or around 24 to 27 May 2025, I took [him] to multiple different appointments for pathology investigations. These were requested by the doctor due to the progression of [his] neurological symptoms…

17. On or about 30 May 2025, I took [my son] to an appointment with … a neuroimmunologist at Royal Prince Alfred Hospital. [The doctor] diagnosed [my son] with a bilateral autoimmune inner ear disease…

18. On or about 30 to 31 May 2025, I stayed with [my son] while he was admitted to hospital. Throughout this time, [he] received IV methylprednisolone, a steroid drug and Rituximab immunosuppressive therapy. I attended to [him] while he endured this treatment and he became even weaker than before…

19. On or about 5 to 6 June 2025, I again attended Hospital with [my son] as the pain in his ears had become unbearable…

20. On or about 12 June 2025, I took [him] to another immunologist at Concord Hospital, … [who] confirmed the previous doctor’s diagnosis and reaffirmed the course of treatment chosen…

21. Again, on or about 16 June 2025, I attended hospital with [my son] while he received another round of Rituximab immunotherapy infusion…

22. On or about 21 June 2025, I took [my son] to test his hearing. [He] kept complaining about his hearing getting worse…

23. On or about 22 June 2025, I had taken [my son] to test his hearing, at this point it had deteriorated to 20%. [He] was experiencing extreme side effects from the medication and his symptoms were exacerbating. While I was with my son he was becoming extremely emotional, he was not in a good place mentally and on this day he threatened self-harm. All my attention was on [him], I was with him every minute of the day, watching him, comforting him. I did not leave him alone at any point in time…

24. On or about 1 July 2025, I took [my son] to hospital to receive another round of Rituximab immunosuppressive treatment. On this occasion, they increased the dosage which worsened the side effects. [He] required very intensive care, I barely left his side. At this point, I was cooking all his meals, continuously sanitising the house, ensuring everyone around [him] was of good health.

25. On or about early July 2025, [he] came down with a cold and was bedridden for four weeks, at this stage [he] could not walk and was limping everywhere.

26. On or about 22 July 2025, I took [my son] to Royal Prince Alfred hospital where they found a buildup of fluid. At this stage I had spent most of my month in and out of hospital with [him]…

27. On or about August 2025, I took [my son] to see [a] rheumatologist. [She] confirmed that the fluid build was arthritis and this was likely associated with [his] autoimmune disease.

28. Currently my son is on a number of different medications, including very high doses of steroids and Rituximab infusions. I need to be with my son at all times as he is not able to do most things on his own and the medications have severe side effects.

29. Since the diagnosis of my son … I have been in and out of hospital, constantly taking him to doctors appointment and anywhere else he needs to be. I have been by his side, cooking all of his meals, monitoring his every move. This entire journey has been extremely difficult and trying. I cannot explain how hard it is to watch your son suffer in this way. [My son] was once a very athletic, healthy and energetic person who constantly ran marathons. My only concern for the last 10 months has been [his] health and happiness.

30. Providing Jeresyn Legal with instructions on this matter was the last thing on my mind. I was more concerned with my son … and how he was progressing and doing anything I could to help him have a better quality of life.

31. In or about early February 2026, the seventh Defendant approached me and reminded me of the proceedings. The seventh Defendant has a beneficial interest in the property ** Grand Parade, Brighton le Sands. As per our family law Orders, Chris owns the entirety of the property…

32. On or about February 2026 I re-engaged with Jeresyn Legal.

33. By this stage, my solicitors had not filed any defence or evidence in my matter and it was set down in a hearing on 3 and 4 March 2026 in the Supreme Court.

34. I instructed my solicitor to seek an adjournment in this matter on or about February 2026, when I re-engaged them.

COSTS CONSEQUENCES OF SEEKING ADJOURNMENT

35. I understand it is likely that I and the First Defendant may face costs consequences of seeking an adjournment of the hearing date. I accept that I and the First defendant should pay the costs thrown away incurred by the other parties to prepare for this hearing.

36. My solicitor has explained that an order for costs forthwith is one possible type of costs order that could be made against me. I understand that an order of this type means that costs are immediately payable.

37. If the first Defendant were required to meet those costs immediately, I would not be able to afford those costs. The first Defendant would also not be able to meet those costs. As a consequence, I would be forced to abandon these proceedings.

POTENTIAL DEFENCES

38. On or about mid-February 2026, I was informed by my solicitor that defences to the Plaintiff’s claim may be arguable.

39. A copy of the Loan Agreement entered into with WholeCap Debt Fund No. XIV Pty Ltd as trustee for the WholeCap Debt Fund no. XIV Trust 1 dated 9 June 2022 is set out as at pages 52 to 152 of Exhibit RR-1. The agreement included the following terms:

(a) The Plaintiff agreed to lend an amount of $450,000 to the First Defendant.

(b) The First and Second Defendants were required to repay the loan together with any accrued but unpaid interest owing by 22 September 2022, three months from the drawdown date (Clause 6).

(c) The First and second Defendants were required to pay interest at a rate of 21 per cent per annum commencing on the Drawdown Date (Clause 4.1)

(d) It was an event of default if the first or second Defendants failed to pay any amount that was due and payable (Clause 11.1(a))

(e) Interest accrued on the amount that remains unpaid after the Termination Date at a rate of 25 per cent per annum (11.2)

40. Having regard to the terms as set out above, the defences include a claim that the loan agreement entered into included one or more unfair contract term, including the terms identified above.

41. A further possible defence I have been informed may be arguable is that the loan agreement is liable to be set aside by the Contracts Review Act 1980 on the basis that it is in all of the circumstances unjust, having regard to the terms identified above and other terms.”

25. Ms Raheb’s 4 March 2026 affidavit contains the following paragraphs:

“8. At some time between 18 to 23 September 2024, I became aware of the proceedings against me.

9. On or around 23 to 27 September 2024, I was in conversations with my Trustee, I said words to the following effect:

‘These are the court proceedings, what do I do?’

The Trustee replied to me with words to the following effect:

‘I will notify the Courts that you will be Bankrupt and the proceedings should go away.’

After this conversation, it was my understanding that the Trustee would be taking care of the proceedings and defending them on my behalf.

10. On or about 1 October 2024, I became bankrupt. A copy of the National Insolvency Index Search is at pages 1 to 2 of exhibit RR-2. A copy of a current title search for the property at ** Grand Parade, Brighton Le Sands is at page 3 of exhibit RR-2.

11. On or about November 2024, I met with Joe Nasr of Jeresyn Legal, in an attempt to try and help my mum save her house at ** Stoney Creek Road, Bexley (‘Bexley’). At the time I was living with my mum at her home in Bexley.

By way of background, proceedings had commenced against the Bexley property as previously, my nephew, Anthony Makari had obtained a loan against the property for the purpose of completing building works at my brother, Anthony Azizi’s Gosford and Tasmania sites.

12. On or about 9 December 2024, I accompanied Mr Nasr in court on behalf of my mum. Ultimately, a Deed was signed previously, which meant there was no way to save the Bexley home and eventually mum would lose her house if we did not refinance the property.

13. On or about December 2024, after our court appearance, I began attempting to help my nephew obtain finance to refinance the Bexley home. My nephew, Anthony Makari and myself tried to refinance all the way until my son … got sick in late April 2025.

14. On or about 24 March 2025, when the Amended Statement of Claim was filed, Chris called me and said words to the following effect:

‘There’s a new Statement of Claim’.

I replied with Chris with words to the following effect:

‘What does that mean?’

Chris said words to the following effect:

‘They have added more parties to the proceedings’.

15. On or about sometime in March 2025, Mr Nasr informed me that he would be going to have open heart surgery for a quadruple bypass on or about 2 April 2025. Mr Nasr said words to the following effect:

‘Gareth of my office, will look after the matter for Chris’.

16. At this point in time it was still my understanding that I did not have to do a single thing for these proceedings as my Trustee would be taking care of it.

17. On or about late April 2025, my son … became extremely unwell and bed ridden, it was at this point his illness had begun advancing.

18. On or about 16 May 2025, Chris said words to the following effect:

‘Gareth from Jeresyn Legal has sent me an email and you need to put in evidence’.

I replied with words to the following effect:

‘Chris I am more worried about [my son] right now, I don’t have time for this.’

19. During the remainder of 2025, I was too stressed about [my son] to give my attention to anything else, I had forgotten about these proceedings until about October 2025.”

26. It is timely to observe that on 2 May 2025, Pike J made orders, among others, extending until 16 May 2025 the time for the defendants in the proceedings to file their defences. His Honour ordered, relevantly for present purposes, that, subject to the entitlement of Ms Raheb and her Bankruptcy Trustee to be heard with respect to the form of the relief claimed in prayer 6 of the amended statement of claim (concerning any judicial sale), they were precluded from relying on any defence not filed and served by 16 May 2025. His Honour also excused Ms Raheb and her Bankruptcy Trustee from further appearance until further order or until the proceedings were listed for final hearing.

27. Those orders were made by consent. Critically, on 1 May 2025, Mr Nasr wrote to the solicitor for the plaintiff, as well as for other parties to the proceedings, in these terms:

“Dear Colleagues,

We note the orders are consented to on the basis order 1 is extended to 16 May 2025.

Thank you for agreeing to mention our appearance.

Joe Nasr/Jeresyn Legal.”

28. Moreover, on 16 May 2025, after these orders had been made, Mr Nasr wrote to the other parties to the proceedings, including the plaintiff, attaching what he described as “the unfiled and unverified Defence of the first defendant”. Mr Nasr was noted as the legal representative of Raheb Property Holdings, the first defendant. In what must clearly have been a typographical error, that defence refers in terms throughout to “the third defendant” when it ought obviously to have been intended to refer to the first defendant. Taking account of that mistake, paragraph 4 of the defence should be noted:

“4. Third defendant [sic] admits paragraphs 11 and 12 of the ASOC, but says the loan agreement and guarantee were procured by unconscionable conduct as the plaintiff implemented a process and engaged in a system of conduct in contravention of the [sic] s 12CB of the Australian Securities and Investments Commission Act 200**1 (Cth).

Particulars

(i) Third defendant [sic] never received the benefit of the Advance payable to it under the Loan Agreement with the plaintiff.

(ii) The plaintiff failed to account to third defendant [sic] as to disbursement of the Advance.

(iii) The plaintiff did not comply with the terms of the Loan Agreement.

(iv) The first defendant did not and has never had an interest in the property at folio identifier 4/B/6718, being ** The Grand Parade, Brighton Le Sands NSW 2216 (property).

(v) The property was a residential property at [sic, and] the first defendant alleges that the plaintiff, in their capacity as the lender, breached their obligations under the National Consumer Credit Protection Act 2009 (Cth) (the ‘NCCP Act’) and the National Credit Code (‘NCC’), particulars of which are:

(a) the plaintiff failed to conduct an assessment of the first defendant’s financial position or failed to do so adequately, as required under section 128 of the NCCP Act, prior to providing credit to the first defendant;

(b) the plaintiff extended credit to the first defendant without properly determining that the credit contract, or provision of credit, was not unsuitable for the first defendant contrary to section 129 of the NCCP Act;

(c) the plaintiff did not make reasonable inquiries about the first defendant’s requirements and objectives or did not verify the financial information provided by the first defendant, contrary to section 130 of the NCCP Act;

(d) the plaintiff failed to provide the pre-contractual disclosure documents and credit guides in the manner and timeframe required under section 17 and section 133 of the NCC, therefore failing to ensure the first defendant was adequately informed about the credit contract;

(e) the plaintiff engaged in conduct which was unconscionable within the meaning of section 76 of the NCCP Act or otherwise misrepresented the terms, costs, or obligations associated with the credit contract, resulting in disadvantage to the first defendant.”

29. Without wishing or intending to do injustice to the manner in which, or the terms upon which, Raheb Property Holdings or Ms Raheb propose to defend the proceedings, the particulars listed above would appear to replicate the way in which they now seek to do so. For avoidance of doubt, the proposed defence upon which they seek to rely, was tendered and became Exhibit X1 on the application.

30. In my view, none of the matters proffered either by Raheb Property Holdings or Ms Raheb as a basis for not having defended the proceedings or for leaving an application to be permitted to do so until the day before the commencement of the hearing is satisfactory or acceptable.

31. The fact that Mr Nasr required open heart surgery does not explain why it was not possible to put in place arrangements by appropriate delegation within his firm or even beyond it to some appropriately qualified solicitor, to ensure that the interests of Raheb Property Holdings and Ms Raheb were properly and adequately protected. Mr Nasr understood and agreed in terms to the making of orders for the filing of defences by both defendants. The onset of Mr Nasr’s “major health crisis” in April 2025 clearly did not interfere with or prevent his firm from consenting to Pike J’s orders made on 2 May 2025 or from preparing and forwarding a draft defence apparently in compliance with those orders on 16 May 2025. I am completely unable to understand, and am somewhat troubled by, Mr Nasr’s assertion that “we were hampered by not having full instructions from our clients” when his consent to the 2 May 2025 orders and the preparation and distribution of the draft defence could, and certainly should, only have been done with specific and detailed instructions to do so. The fact that Mr Nasr’s cousin died in November last year or that he injured his shoulder in January this year hardly excuse a failure to prepare the case for hearing commencing in March this year.

32. I have the utmost sympathy for Ms Raheb’s difficulties concerning the health of her son. However, as the way in which Ms Raheb’s representatives have conducted the proceedings before me will demonstrate, they have applied to vacate the hearing upon the basis of what amount to the very same instructions that had been provided to Mr Nasr as long ago as May 2025.

33. Mr Raheb told Ms Raheb on 16 May 2025 that Gareth form Mr Nasr’s office had advised him that Ms Raheb would need to put on evidence. I am unable to accept that there was insufficient time to do so between then and when the matter was listed for hearing. Indeed, the matter was set down for hearing by Pike J on 24 October 2025. Mr Watson appeared on that day for the first to seventh defendants. As the transcript for that day reveals, Mr Watson had instructions to agree to a hearing but advised his Honour that he was also instructed to ask for a date not before March 2026. That is what occurred. Significantly, however, the transcript on that day also included the following:

“HIS HONOUR: Can someone remind me what the case is and how long it is going to take?

DAVIS: Your Honour, we estimate that the hearing will take at least one, maybe two days. At the moment there is only evidence put on by the plaintiff; so, on the evidence that has been filed to date, we estimate just one day. The proceedings were commenced back in July 2023, and the parties are seeking the sale of a property that is encumbered by a mortgage, a registered mortgage, and another caveat above the plaintiff’s interests, and there are numerous caveats below the plaintiff’s interest as well.

HIS HONOUR: So it is one day?

DAVIS: One day at this stage, your Honour.

HIS HONOUR: When you say, ‘at this stage’, is that because, what, there is a possible that some evidence may come on from the defendants and it might extend the hearing?

DAVIS: Yes, your Honour. We were told for the first time yesterday, by the solicitor acting for the first and seventh defendants, that they intend to bring an application to file further evidence for two witnesses, your Honour, although they did consent previously on 4 September to guillotine orders.

HIS HONOUR: They will need to make that application, and, if and when they do, I will deal with it; but, at the moment, would it be sensible, so it is not going to be disruptive, if I give it two days?

WATSON: Yes.

DAVIS: Yes, your Honour.

HIS HONOUR: So you are not coming back asking for a second day if Mr Watson brings a successful application for leave to rely on evidence. You are probably, Ms Davis, not going to get a date this year anyway for hearing, so it is going to be some time in the first part of next year. Do the parties have available dates?”

34. That discussion needs also to be understood in the light of the orders made by Pike J on 2 May 2025, which included orders 9 and 10 as follows:

9. The second, third, fifth, eighth, ninth, tenth and eleventh defendants do not oppose the relief sought in prayers 1 to 5 and 7 and 8 of the plaintiff’s amended statement of claim filed on 24 March 2025.

10. The second, third, fifth, eighth, ninth, tenth and eleventh defendants may seek to be heard in relation to the form of relief claimed in prayer 6 of the plaintiff’s amended statement of claim filed on 24 March 2025.

35. The matters that Raheb Property Holdings and Ms Raheb want to agitate now were clearly in the mix on both 2 May 2025 and 24 October 2025 at the very latest. Raheb Property Holdings circulated a defence which it did not file. It is reasonable to assume, and I find, that the plaintiff proceeded on the basis that the consent orders made on those occasions reflected and represented the attitude to this litigation that Raheb Property Holdings and Ms Raheb had instructed her legal representatives to take. There is no satisfactory explanation for why, in all of the circumstances, the application to vacate the hearing was left until 4 March 2026.

Do Raheb Property Holdings and/or Ms Raheb have a defence?

36. The plaintiff contended that Ms Raheb has no standing to defend the proceedings in circumstances where her estate was sequestrated on 1 October 2024 and where her Bankruptcy Trustee is a party to the proceedings and does not seek any orders to be let in to defend. The plaintiff’s submissions were in the following terms.

37. By s 58(1) of the Bankruptcy Act 1966, where a debtor becomes a bankrupt “the property of the bankrupt … vests forthwith in … the trustee of the estate of the bankrupt”. That property includes ** The Grand Parade, Brighton-le-Sands as well as “the capacity to exercise, and to take proceedings for exercising all such powers in, over or in respect of property as might have been exercised by the bankrupt for his or her own benefit at the commencement of the bankruptcy or at any time after the commencement of the bankruptcy and before his or her discharge”: s 116(1)(b) of the Act.

38. Any claim that Ms Raheb may at one time have had against the plaintiff seeking to be relieved of her obligations under the loan agreement and the mortgage, has vested in her Bankruptcy Trustee. As Allsop P stated in Moss v Eaglestone [2011] NSWCA 404 at [73], “injuries arising as a direct result of infringements of financial or property rights passed to the trustee”.

39. In these circumstances, Ms Raheb has no entitlement to depart from the position adopted by the Bankruptcy Trustee, reflected in the orders made by Pike J on 2 May 2025.

40. However, more fundamentally with respect to the terms of the defence upon which Raheb Property Holdings and Ms Raheb hope to rely, the evidence in my opinion establishes that at the time that the Raheb interests were proposing to enter into the loan agreement, as well as the time when they did so, they were in substantial financial difficulties and were under great pressure to refinance several ventures for that reason alone. This is apparent from the terms of Ms Raheb’s 5 March 2026 affidavit, the presently relevant portions of which are set out in the SCHEDULE to these reasons.

41. The material to which Ms Raheb earnestly deposes in considerable detail does not support the existence of a defence that she and Raheb Property Holdings were induced to enter into the loan agreement by reason of unfair pressure from Mr Rollason or because of fraudulent misrepresentations he made on behalf of WholeCap. It is patently evident that the group of companies that Ms Raheb describes were in severe financial difficulties. Receivers had been appointed to some of them. They were having difficulties paying creditors. There was no prospect that a bank would lend them sufficient funds to refinance their combined accumulated indebtedness. The need to pay for valuations of their several properties in the hope of doing so, was a necessary incident of their parlous state.

42. Mr Farrell described it in terms by referring to:

“the financial difficulties they’re facing. They are in the position where they’ve spoken with a number of banks, and they’ve been unable to obtain funding from them. And they’re in the position where they need this assistance with some urgency. Now, what is then deposed is that Mr Rollason makes a number of representations that he will assist them in refinancing a number of different entities in relation to a number of different projects that they had on foot.”

43. The following extract from the transcript of proceedings before me is instructive:

“HIS HONOUR: So in summary: what was $450,000 going to do in the scheme of the financial difficulties across the group?

FARRELL: Well, this is where what we say that the rub of this issue really is.

HIS HONOUR: Sure. That’s why I asked the question.

FARRELL: Because what was actually proposed initially was a loan of $13 million in relation to those particular properties. And in fact, there was a further one for $30 million for the business entity itself, but what ultimately transpires, and I’ll just take you to the pertinent paragraphs of this. It may be easier if I take you to the exhibit bundle briefly to illustrate the nature of some of these agreements proposed. So if I could take you to p 4 of the exhibit bundle. Now you’ll see there a facility amount of $30 million in that one and what effectively you’ll see on the preceding pages is a number of different indicative term sheets that set out, effectively, variations of the $30 million arrangement and variations of the more substantial refinancing arrangement as well.

Now, what ultimately transpires, and perhaps I’ll take you to para 37 of the affidavit now, if that’s all right, is that the second defendant then sets out that in her conversations with Mr Rollason, he regularly referred to his fees in their various conversations. Now what transpires is that what he represents is that before he would finalise the loan agreement over what are known as the Tasmania and Gosford sites, he effectively demanded that the fees be paid for these deals before they could be finalised.

So what he says at para 39, and this is quite critical, he says, ‘I need my fees to be paid so that we can go ahead with the loan’, and that’s the earlier existing $30 million loan. But what he’s critically saying there is that part of those fees are for his own management fee as it were, but part of those fees are to pay for the valuations for those earlier properties in order to give effect to those earlier arrangements. So that’s what the second defendant’s evidence is that his representations are.

Now where we then get to with this matter before the Court is that the $450 arrangement, and you’ll see this at para 41, is effectively proposed by Mr Rollason as a way in which he could get paid his fees, and by fees he’s referring to his own management fees, as well as the valuation fees to give effect to those earlier agreements. So what we have here is a scenario where the second defendant, relying on the representations made by Mr Rollason, that this arrangement was necessary in order to give effect to these earlier financing arrangements, entered into this loan agreement at a time of what we would say was extreme financial pressure, where Mr Rollason himself is placing considerable pressure on them in his capacity as the director of the former trustee, but also in relation to the broader financial difficulties that they’re facing that Mr Rollason was well aware of, and that would be our point on that.”

44. As much as $225,000.00 of the $450,000.00 loan that was agreed to went immediately to pay outstanding amounts owed to sub-contractors. There can be no issue that these defendants received the direct benefit of those monies. The loan was also agreed to as a means of securing, if possible, as much as $13 million to consolidate the group’s total indebtedness. There could have been no realistic prospect of doing so without satisfying ordinary lending criteria, including the provision of reliable valuations for which they would have known they were expected to pay. The fact that the refinancing attempts were not successful does not indicate only that payment of the valuation fees with borrowed funds was somehow induced by unconscionable or unfair conduct.

45. It is pellucidly clear that the group had no money to pay for valuation fees and that Ms Raheb was content to borrow money for that purpose. There is no suggestion in anything said by Ms Raheb in her affidavits that Mr Rollason guaranteed that the $13 million would be available if the valuations were paid for. The loan agreement was clearly entered into as the result of a desperation borne of circumstances that were anterior to and unconnected with any conduct by WholeCap.

Balance of convenience

46. To the extent that the only security of any value which the plaintiff has is the property at Brighton-le-Sands, the diminishing value of any available equity in that property over time is a significant matter to be taken into account in the exercise of a discretion on the question of whether or not Raheb Property Holdings and Ms Raheb should be let in to defend.

47. The uncontested evidence suggests, having regard to the secured creditors ranking ahead of the plaintiff, that there will be insufficient funds available upon a sale of the property to pay the plaintiff’s debt in full.

48. Mr Farrell made the following submissions on this issue:

“FARRELL: … Your Honour, if I could turn now to the third point. That’s the balance of convenience issues more broadly in this case. I accept that this matter has - this is now the day of a final hearing of this matter and that the defendant is being asked a real indulgence of the Court to be allowed to be effectively let back in. What I would say is that obviously the prejudice to the second defendant is extreme in all of these circumstances, in that it is the last remaining family home that she holds, albeit it is vested in the bankruptcy trustee now. But for the purposes of this application she holds the beneficial interest, at least on title, of that property.

HIS HONOUR: She holds the legal interest, doesn’t she?

FARRELL: Yes, sorry, the legal interest, your Honour. My apologies. She holds the legal interest to this property. The consequences for her, obviously, will be catastrophic if these proceedings are allowed to proceed to final hearing. She will be forced to vacate the property. You’ll note also what is in evidence about the condition of her son and the health issues there and the difficulties faced with that, such that there would be a weighty prejudice for her and her son, who is heavily reliant on her due to his medical condition, such that we would say that the prejudice there is extreme.

Now, weighed against that is the - I acknowledge the potential financial prejudice to the plaintiff if one or more of the defendants were let back into these proceedings. I accept that is some prejudice that you obviously ought to balance and take into account, but in all of the circumstances, the weight of this matter, and the circumstances for particularly the second defendant, would just ever so slightly tip the scales in favour of letting the defendants back into these proceedings. Now, no doubt my friend will quite rightly raise the question of costs, and how to grapple with that issue. And I accept that there may well be issues over the capacity of one or more of the defendants to pay.

HIS HONOUR: Well, there’s no indication they have any capacity to pay.

FARRELL: Yes, precisely right.”

49. The balance of convenience does not favour any order that would delay the sale of the property.

Costs

50. Ms Raheb has acknowledged that she is not in a position to pay the costs that she accepts must be ordered against her or Raheb Property Holdings if the orders she seeks are made. To that extent any offer or undertaking to pay such costs is worthless.

Order

51. It follows in my view that the application of Raheb Property Holdings and Ms Raheb must be dismissed with costs.

Judicial sale

52. As already noted, Raheb Property Holdings has not filed a defence. There is no issue that WholeCap entered into the loan agreement and advanced money to Raheb Property Holdings or that the monies so advanced have not been repaid. The plaintiff is entitled to a money judgment against Raheb Property Holdings.

53. The principles governing an application for judicial sale of real property were summarised by McGrath J in Bizcap Au Pty Ltd v Vo [2025] NSWSC 518 at [32]-[35]:

“[32] An equitable mortgage may be created by an agreement in which the parties demonstrate an intention to create a present security: Westfield Holdings Ltd v Australian Capital Television Pty Ltd (1992) 32 NSWLR 194, Young J at 200, citing Swiss Bank Corporation v Lloyds Bank Ltd [1982] AC 584, Buckley LJ (with whom Brandon and Brightman LLJ agreed) at 595.

[33] An equitable mortgage will also arise where there is a specifically enforceable agreement to create a mortgage: National Australia Bank Ltd v Clowes [2013] NSWCA 179, Leeming JA (with whom McColl and Macfarlan JJA agreed) at [25].

[34] An unregistered mortgage is regarded in equity as conferring an equitable charge and an order for judicial sale is the standard way of enforcing an equitable charge: King Investment Solutions Pty Ltd v Hussain (2005) 64 NSWLR 441; [2005] NSWSC 1076, Campbell J at [81].

[35] The relevant principles regarding an application for a judicial sale of real property by an equitable mortgagee/chargee were conveniently summarised in Guo v Option Holdings Pty Ltd [2024] NSWSC 1506, by Peden J at [43]–[45]:

[43] It is unclear on the authorities as to whether an equitable chargee is entitled to an order for judicial sale as of right, or whether the Court retains a discretion to withhold relief: see the discussion of authorities in Bellevarde Constructions Pty Ltd v Cosmas Pty Ltd [2016] NSWSC 406 at [25]-[35] (Stevenson J).

[44] I consider the better view is that the power to order a judicial sale of Torrens land upon default arises from the Court’s inherent equitable jurisdiction, and when considering whether to order judicial sale, the Court is exercising a discretion: Morris Finance Ltd v Free (2017) 18 BPR 37,223; [2017] NSWSC 1417 at [34] (Ward CJ in Eq, as the President then was). It may be that judicial sale is the standard remedy sought by an equitable chargee to enforce their equitable interest: Thorn v Boyd [2016] NSWSC 1344 at [64] (Sackar J). However, as an equitable remedy, the Court ought to have regard to the position of those who will be adversely affected by an order before making it, lest the remedy itself become “an instrument of injustice”: Australia and New Zealand Banking Group Pty Ltd v Donnelly [2012] NSWSC 161 at [29]-[30] (Garling J), discussed with approval in Harriette & Co Pty Ltd v Platine Property Development Pty Ltd (No 2) [2022] NSWSC 1611 at [43] (Walton J) and ACT Plasterboard Pty Ltd v Pohorukov [2024] NSWSC 218 at [15] (Peden J).

[45] Consistent with this view, Campbell J (as his Honour then was) observed in King Investment Solutions Pty Ltd v Hussain (2005) 13 BPR 25,077; [2005] NSWSC 1076 that “without factual material by reference to which the discretion can be exercised, which includes at least the value of the property and the amount owing on the security of it, the exercise of the discretion itself is likely to miscarry”: at [119]; see also [100]-[101].”

See also Investment Group Australia Pty Ltd v Vinrec Australia Pty Ltd (in liq) [2025] NSWSC 612 at [27] per Pike J.

54. By reason of its mortgage, the plaintiff has an equitable charge over the property. It seeks an order for judicial sale to enforce its equitable charge: King Investments at [81]. Notices under s 57(2)(b) of the Real Property Act or s 111(2)(b) of the Conveyancing Act 1919 are not required before the Court can exercise its equitable jurisdiction to order a sale in such circumstances: King Investments at [84].

55. The expert valuation evidence of Mr Bridges as to the value of the property is that its market value as at October 2025, was $6,700,000.00.

56. The NAB as first registered mortgagee is a party to the proceedings: viz, King Investments at [92]. The sum owed to the bank as at 22 August 2024, was $4,189,088.33.

57. The only party who appears to oppose the making of an order for the sale of the property is Mr Raheb. However, he has filed no evidence in support of his assertion that he is the beneficial owner of the property. In any event, he has not attempted to address how that asserted position could affect the rights of an equitable chargee without notice. Similarly, he has adduced no evidence capable of establishing his allegations made with respect to the National Credit Code, even assuming (incorrectly) that he had standing to raise such matters.

58. In these circumstances, the only issue of substance concerns the terms upon which the sale of the property ought to be conducted.

59. Because the value of the property is apparently sufficient to satisfy the first registered mortgagee, it is appropriate that the conduct of the sale be given to the plaintiff: King Investments at [122]. The NAB’s interests are further protected by fixing a reserve price for the property at an amount not less than the sum owed to it or as otherwise agreed or determined by me.

60. I am informed by counsel for the plaintiff that it is proposed that all costs and expenses associated with the sale of the property and the plaintiff’s legal costs of bringing it to sale in these proceedings be paid in priority to all other claims. The plaintiff’s entitlement to those sums is pursuant to an equitable lien over the fund constituted by the proceeds of the sale arising “by operation of law, under a doctrine of equity as part of a scheme of equitable adjustment of mutual rights and obligations”: Hewett v Court (1983) 149 CLR 639 at 645 per Gibbs CJ. Such a lien arises here by way of principles analogous to that stated by Dixon J in In re Universal Distributing Co Ltd (in liq*)* (1933) 48 CLR 171 at 174 and affirmed in Stewart v Atco Controls Pty Ltd (In Liq*)* (2014) 252 CLR 307 at [11]-[23]. As the Court stated in Stewart at [16]:

“A secured creditor cannot lay claim to the benefit of realised assets without the costs of their realisation being met.”

61. It is anticipated that following payment of the costs and expenses referred to in prayer 6 of the amended statement of claim, the NAB’s secured debt is to be paid and the balance of the sale proceeds paid into Court to determine issues as to the priority of the various encumbrancees (if any). In these circumstances, I will direct the plaintiff to bring in short minutes of the orders it proposes.

SCHEDULE

2. ** The Grand Parade, Brighton Le Sands, also known as Lot 4 Sect B in Deposited Plan 6718 (Brighton Le Sands) is a family home.

3. I am the registered proprietor of Brighton Le Sands. I resided at Brighton Le Sands until I separated with my former husband in 2022.

4. The first mortgage loan over Brighton Le Sands was taken out in April 2017 with National Australia Bank.

Background to my family business

5. In or about 2009, I started working with my brother, Anthony Azizi. Together we developed properties and Mr Azizi had a construction company Trinity Constructions Australia Pty Ltd.

6. I was a director of two related entities Trinco NSW Pty Ltd and Trinco (Aust) Pty Ltd. Mr Azizi was the director of Jana Pty Ltd which was a special purpose vehicle that held one of the properties we were going to develop.

7. This was ** Stoney Creek Road Bexley, and we were intending to develop the site with a block of units. There were other special purpose vehicles for each of the development sites. These were broadly referred to as the Trinity Construction Group of companies.

8. From 2020, during the Covid 19 Pandemic, the Construction Group suffered significant business challenges as a result of the various lockdowns.

9. Trinity Constructions Australia Pty Ltd went into receivership in September 2021.

10. As a result a number of the special purpose vehicles slowly went into receivership.

11. On 21 December 2021 Jana Pty Ltd was placed in receivership.

12. In February 2022, the receiver of Jana Pty Ltd, introduced myself and Mr Azizi to Jared Rollason, who was the director of Debt Fund No XIV Pty Ltd (Wholecap). Although I don't recall the precise date, early in February 2022 I and Mr Azizi spoke with Mr Rollason over the phone. During the call, he said words to the effect: “I should be able to refinance Bexley out of receivership.”

13. Mr Azizi said words to the effect of: “Yes, please go ahead.”

14. The gist of what he said was that his trustees would be very interested in funding this project.

15. At this point Trinity Constructions Australia Pty Ltd had gone into liquidation. We considered it very unlikely we obtain a loan from a bank. I spoke with St George Bank around this time, and they told me that they wouldn't be able to provide any assistance. By this time, we had started earthworks on the site but were not able to complete the development because of the financial difficulties the group of companies was facing. Given the position we were in, we decided to seek assistance from WholeCap.

16. Mr Rollason agreed to refinance Jana Pty Ltd on or around 14 February 2022. Mr Rollason told Mr Azizi that his investors could fund the developments on this site for $30m…

17. On or around February 2022 I called Mr Rollason and said words to the effect that he had approved the loan.

18. However, this arrangement never proceeded because the receivers sold the Bexley site. But because of the representations that Mr Rollason had made and his assurance to us that he had been approved to loan us the funds, I felt as though Mr Rollason would be able to assist us with the considerable challenges we were facing with the company group as a result of the challenging economic conditions we were facing.

19. Mr Rollason then offered to assist us with refinancing other special purpose vehicles for companies we had.

My concern about other aspects of our family business

20. Because of what had happened with Bexley site, around March 2022 I became concerned about other developments that were being undertaken by the Group and took steps to be proactive about two sites in particular known as the Gosford and Tasmania sites.

21. The Gosford site was owned by West Gosford Holdings Pty Ltd. These were to be units and aged care facilities. The Tasmania site was called St Leonards Pty Ltd and was a subdivision of 500 residential lots.

22 I approached Mr Rollason around March 2022 about possibly assisting us in refinancing.

23. Mr Rollason proposed using the equity in a number of properties held by myself and a number of my family members to be able to refinance and loan us the funds for the Gosford and Tasmania sites. The family properties identified to use as equity for the loans were:

(a) ** Homebush Road South Strathfield (at the time owned by myself and Mr Christopher Raheb)

(b) ** Chalmers Road, Strathfield (at the time owned by Christopher Raheb)

(c) ** The Grand Parade Brighton Le Sands (at the time owned by myself)

(d) ** Broken Bay Road, Brighton Le Sands (at the time owned by Christopher Raheb, Anthony Azizi and myself)

(e) ** Duke Street, East Balmain (owned by my sister Jacqueline Azizi)

(f) ** Courallie Ave, Homebush West (owned by Christopher Raheb and myself)

(g) ** Courallie Ave, Homebush West (owned by Anthony Azizi)

(h) ** Sydney Street, Erskineville (owned by Anthony Azizi)

(I) ** Chamberlain St Campbelltown (owned by Trinity Investments Pty Ltd)

(j) ** Tyler Street, Campbelltown (owned by Tyler Street Pty Ltd).

Collectively, referred to as ‘Family Homes’.

24. Mr Rollason told me that what we could do is use the funds from the sale of the development sites to payout the loans taken against our family homes.

25. Because of the difficulties we faced when Trinity Constructions Australia Pty Ltd went into receivership, my family and I were unable to meet the existing loans we had on all of the above-mentioned properties.

26. Given the financial difficulties we were facing, I was very anxious to move ahead with these arrangements to try to resolve the difficulties we were facing.

27. Mr Azizi and I would contact Mr Rollason via phone almost every day in relation to the loan sites mentioned above and the Family Homes. Mr Rollason would respond to these messages and verbally tell us on the phone calls that the properties would settle and the mortgage documents were coming shortly. When we asked how this would work, he said mortgage documents and the settlements would happen at the same time, it is all done electronically.

28. WholeCap gave Mr Azizi and I different term sheets to sign and pay for the valuations and application fees. However, none of Mr Rollason's offers were going to work as the figures were not aligning up. We received approximately 10 different term sheets from WholeCap for all the homes and the Gosford and Tasmania sites. Mr Rollason stated that he had investors that were interested in being involved in these developments, and that way, we could potentially pay out the houses which had mortgages from these developments.

…

29. Around 25 March 2022, Mr Rollason sent another term sheet for an amount of $350,000.00 so Mr Azizi and I could pay some of the subcontractors for the Tasmania development…Mr Rollason stated that he was trying to work out of the portfolio of properties of Mr Azizi's that he could put on a short-term loan till he had the loan across for Tasmania and Gosford.

30. On 29 March 2022, Mr Rollason stated that the loan was approved and money was held in trust and ready for distribution. Mr Rollason further stated that Alexander Swensen from Ashurst would further dial our solicitor, Nathan Buckley, first thing in the morning. However, this loan did not proceed.

31. On 1 April 2022, Mr Rollason stated that he would have a loan for the Strathfield property again and another term sheet.

32. On April/May 2022 Mr Rollason said he had found a solution and issued another term sheet for all the properties, which had 12 months of interest prepaid, and the existing plan would be paid out of either the development sites or, he said, he knew someone at ANZ bank, he could refinance it through ANZ bank. The value of this loan was in excess of 13m.

33. On 9 May 2022, Mr Rollason sent me an email confirming that settlement was going to proceed on the Family Homes refinancing, and he was opening up a PEXA workspace (email AA 4). We'll have Alex Swenson / James Marshall of Ashurst (WholeCap's Lawyers) reach out to Mr Justin Bates of Dentons to advise and commence the opening of the PEXA workspace and dealings etc.

34. On or around 10 May 2022, I sent an email to Mr Rollason stating that there were caveats on all of the family properties. He sent me an email on 10 May 2022 stating “We have reached out to Justin Bates of Dentons earlier this morning, to whom has advised that due to Privacy he cannot discuss the matter until we [WholeCap & Ashurst] have been given Authority to Act. Mr Bates has advised La Trobe Financial has a Privacy Form that can be quickly completed in order for us to discuss the matter with Dentons in order to finalise – could you / Chris kindly act on this?”.

35. the term sheet dated 28 May 2022 looked attractive, and I signed it on 1 June 2022. I was prepared to take this offer, knowing these were all family homes and we needed to save them…

36. This loan would have saved our family homes and business interests had that gone ahead. I considered given that we had signed the term sheet it was clear that the arrangement was going ahead.

Mr Rollason's requests for his fees to be paid

37. Mr Rollason had regularly referred to his “fees” in our various conversations.

38. Before he would finalise the Loan Agreement over the Tasmania and Gosford sites, he demanded that the fee be paid along with all the other fees for deals he had worked on but never came through.

39. Early in June 2022 he told me in a phone call “I need my fees to be paid, so that we can go ahead with the loan.” The gist of what he then told me is that he needed his fee, in part to pay for the valuations of the property, and partly for his own fee. He said to me the valuations had been completed but he could not get them released until the application fee had been paid.

40. Mr Rollason continuously requested payment in order to progress the $13m agreement and the Family Home financing arrangement.

41. In a further conversation early in June 2022, he said words to the effects that “the Brighton property had the most fat in it”. He then said to me we should get an advance on the Brighton Le Sands property I owned, ** Grand Parade St, Brighton Le Sands, so he could get paid his “fees”. The gist of what he then told me is that it would be his preference to enter into an arrangement with a company that was more than two years old for this agreement.

42. Mr Rollason then said we could obtain some funds partly to keep paying the subcontractors for the Tasmania site, and partly for his fees. He assured us he would pay this money back once the finance had come through on the Tasmania and Gosford sites. I felt increasingly pressured to enter into a further agreement by Mr Rollason given what he had told me about requiring valuations for the properties.

43. Mr Rollason met with Mr Azizi and tried to convince him that this was the way to be able to settle Tasmania and Gosford faster, so Mr Azizi could move forward with these developments and make money. Mr Rollason, before this point, was negotiating with Vanguard and lnaty to get the loans repaid and spoke to both the lenders to reassure them that the loan was going to proceed.

44. Mr Rollason also provided letters of comfort on 4 July 2022 to lnaty to the discharging mortgagees to us that he was going to fund these projects and the homes. He also provided letters of comfort to the subcontractors, Harrington Lawyers and stated, “Please don't hesitate to advise if any of the other matters are causing issue that could affect the incoming facilities at the earliest as well, please”.

…

45. Based on these representations, we were confident that Mr Rollason was going to complete the loan.

46. On 14 July 2022, Mr Rollason provided us with a “letter of comfort to be at your disposal and dispense to the appropriate creditors across each of your portfolios.”

The entry into the $450,000 Loan Agreement with WholeCap that is the subject of these proceedings

47. Because of the extreme pressure I was under along with the rest of my family, the representations made by Mr Rollason regarding the progress of the settlement for the finance of the Family Homes, the representations regarding the need to pay for the valuations, and the pressure Mr Rollason placed to obtain payment for his fees before the refinancing arrangements could progress, I decided to enter into the agreement. I felt like I had little choice to enter into the arrangement given the circumstances.

48. At the time I was the sole director and shareholder of Raheb Property Holding Pty Ltd, and I caused the company to enter into this arrangement. I negotiated the arrangement on behalf of the company entirely with Mr Rollason. I became the guarantor for the agreement. I made this decision because around May 2022 I had a further conversation with Mr Rollason. The gist of what he told me is that we would be paid back once we had settled the Tasmania and Gosford sites in and around early to mid-2022.

49. On or about sometime in June 2022 I signed a Term Sheet for this arrangement. I cannot locate the exact term sheet that I signed.

50. On 21 June 2022 I entered into the loan agreement for the $450,000.00 that is the subject of these proceedings…

51. However, out of the $450,000.00 Mr Rollason only advanced $202,500.00. He promised additional funds, but they were never received. When we requested receipts or copies of these valuations, they were never provided.

52. These funds were ultimately used to pay subcontractors working on the Tasmanian site, and the consultants working on the Gosford site.

53. The remaining funds were kept by Mr Rollason for his fees, including for the valuations.

54. Once the Brighton Le Sands property was settled Mr Rollason suddenly became very hard to get a hold of and was not returning calls. Mr Rollason sent emails changing the terms of the loan and providing us with term sheets that had higher interest, establishment fees and higher work fees for WholeCap and the existing plan to sell the properties of the Family Homes…

55. Mr Rollason would send messages stating that he would get back to us and that Alex Swensen from Ashurst's is going to call us so he can send us mortgage documents for Gosford and Tasmania, so we could settle and start developing.

56. On 8 July 2022, Jake who was Mr Rollason's colleague at WholeCap sent an email stating that “Suffice to say the purported position has been materially misrepresented, regarding status and value of subsisting caveated interests on title” email attached with Nathan Buckley response on the 10 July 2022…

57. WholeCap had all the information on all the properties and development sites before they had taken the $450,000 against Brighton Le Sands. Then 10 days after it had settled they started to back out of taking on all the loans being the Family Houses and the development loans, using the caveats and valuations as there excuse, despite being aware of the caveats as per emails sent to them 10 May 2022 and confirming with Mr Azizi in May 2022 via SMS and email confirming that they had completed the valuations and spoken to agents and that they were comfortable to proceed with the loans.

58. On 8 July 2022, Mr Bell sent an email to me outlining that there were not enough funds to complete the finance due to the caveats being on the property. But yet he was fully aware of the caveats as per the email I sent him on 10 May 2022.

59. On 8 July 2022, I responded to Mr Bell's email and provided him with a breakdown of the caveats. I had given him this information previously in May 2022.

60. On 13 July 2022, Mr Bell responded with this table below, but the terms of the loan had changed “Interest Reserve based on a 12% p.a. interest rate, over the provided 4-month term.” This was not going to work. Nothing had changed only that he had taken money out of the $450K out of the loan, the caveats were still the same the valuations were still the same the only thing that had changed was that he had taken $250K out of the $450K.

…

61. On 15 July 2022, Pexa invites were sent from ERA legal, who act for Vanguard for the Tasmania and Gosford loans, but these loans did not proceed.

62. On the 25 July 2022, we were still requesting the money from settlement as they had short paid us on the settlement. Mr Rollason kept promising and did not pay [refer to email from Anthony to Jake 25 July 2022 at 9.23pm] Mr Azizi sent an email to Mr Bell stating Good evening, Jake, Please see attached term sheet which shows principal amount - commercial advance $264,000.00 which we should have received at settlement, but we only received $202,500.00 on 22 June 2022.

63. We also request a refund for the $11,000.00 work fee, which was paid to WholeCap (this amount was paid twice).

64. Mr Azizi sent Mr Rollason an email requesting the shortfall of the settlement to be sent to us. The email stated:

“Could you please deposit the balance of the funds being $72,500.00 into the same account as the $202,500.00.

Could you please forward a copy of the receipt confirming payment.”

…

66. A massive amount of time and work went into getting the WholeCap loan in place. However, we did not even get to the mortgage documents for the development sites despite the promises and assurance of Mr Rollason.

67. Mr Rollason continuously told us that the mortgage documents were complete and that Alex Swensen from Ashursts was about to send them out. This put me in further problems with lnaty and Vanguard who were the lenders for the Tasmania and Gosford sites. Mr Rollason's unconscionable and misleading behaviour led me to lose one lot to lnaty and the remainder of the investments were lost and placed in receivership.

68. On 11 August 2022, Mr Bell sent me an email with a final offer to refinance the 8 properties for 5 months, this offer stated that he would take all his fees out and then sell all 8 properties. After that was his exit from this facility, which I refused to take, as this is not what he had originally come to me with. We could not sell the Family Homes, and I told him this…

69. Three months after the loan, I met Mr Rollason in the cafe with Mr Bell. Mr Rollason said that he wanted to refinance the whole group so he could pay his investor back the $450,000.00 he wanted. The loan for the whole portfolio was only for 4 months, and the exit plan was to sell the Family Homes.

70. On 2 September 2022, Mr Rollason sent me an email “As discussed, set out below are two options that may, subject to certain conditions being met, allow you to proceed to financial close under the proposed loan:

‘WholeCap refinance your existing senior debt owed to NAB and Trobe (Senior Debt). Under this approach, WholeCap will increase its Facility Limit to make funds available to payout caveats which are registered to protect monetary interests; or

WholeCap purchases the Senior Debt and security. Following this debt assignment, you complete the Asset Disposal Plan (with our assistance) and sell through the caveats. The sale proceeds would then be immediately applied to pay down the Senior Debt.

Please confirm by 12pm, Monday 5 September 2022 which option you wish to proceed with, or otherwise propose another solution which can be acted upon quickly. This is a reasonable deadline which provides you with ample time over the weekend to consider your position. We note that the full form finance documentation has been in your possession since Friday, 22 July 2022.’”

…

Mr Rollason only gave me 3 days to make a decision.

71. In September 2022, Mr Rollason and Mr Bell issued term sheets with all the properties, but the interest rates were higher than the term sheet that I originally had agreed on and signed, and they were pushing me to sign these new term sheets; otherwise they threatened to appoint receivers.

72. On or about October 2022, Mr Rollason appointed Korda Mentha as the receiver for Raheb Property Holdings Pty Ltd.

73. Ultimately, Mr Rollason's promised refinancing arrangement for the $13m never eventuated. None of his other refinancing proposals eventuated including for the Tasmania and Gosford sites. Despite the fees he received from the $450,000 loan agreement, he has never provided any of the valuation documents.

74. We lost all our sites that were worth a lot of money, the sites were going to save our homes. We have now lost most of these homes, which we worked all our lives for; some of these homes we had for 55 years. Some of us are now homeless, all because of Mr Rollason's conduct.

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