Statewide Secured Investments Ltd v Hawkins & Tarrant

Supreme Court of NSW|2011-02-07|Before: Garling J, Mr P, Mr J, Adams J, McClellan CJ

Judgment 1Statewide Secured Investments Limited has obtained judgment against Sandra Lee Tarrant for: (a) $2,675,419.31 as at 14 May 2009 together with interest at 12.95 per cent per annum; (b) judgment for possession of a property in Bardo Road Newport with leave to issue a writ of possession; (c) costs on a solicitor and own client basis. 2That judgment was pronounced on 14 May 2009 by Adams J, and a written copy of the judgment was signed by his Honour on 17 June 2009. His Honour stayed the execution of the judgment. 3On 27 July 2009, McClellan CJ at CL ordered that the stay of the judgment be removed. Since that time, Statewide has taken enforcement action against Ms Tarrant with respect to the judgment. 4On 9 November 2010, over 15 months after the stay was lifted, Ms Tarrant filed a notice of motion seeking the following orders: "(1) An order that judgment entered on 17 June 2009 be set aside; (2) An order that the judgment entered on 17 June 2009 be stayed pending a hearing of the proceedings; (3) An order that a full rehearing of the proceedings be undertaken; (4) Costs; ...". 5That notice of motion came on for hearing on 7 February 2011 before me in the Duty List, at which time Ms Tarrant filed in court an amended notice of motion seeking orders in the following terms: "1. An order that judgment entered on 17 June 2009 be set aside. 2. An order that judgment entered on 17 June 2009 be stayed. 3. A declaration that the judgment entered on 17 June 2009 has been satisfied. 4. In the alternative, a declaration that the judgment entered on 17 June 2009 has been satisfied except to the extent of $25,000. 5. Costs." 6For the reasons which follow, I have decided that the amended notice of motion should be dismissed with costs.

Myola Road, Newport Beach 9Ms Tarrant and her husband, Mr Hawkins, purchased as joint tenants a property at Myola Road, Newport Beach, which was intended to be their family home. 10In order to purchase that property, Ms Tarrant and Mr Hawkins borrowed about $1.4M from Statewide. They both executed a mortgage over the property in favour of Statewide. 11That loan fell into arrears and was the subject of proceedings brought by Statewide against Ms Tarrant and Mr Hawkins claiming judgment for the outstanding loan and possession of the property. 12In July 2009, Ms Tarrant succeeded in refinancing the loan over Myola Road and, as a consequence, she and Mr Hawkins settled those proceedings with Statewide. 13On 27 July 2009, McClellan CJ at CL, with the consent of all parties, and at their request, dismissed the Myola Road proceedings. 14The refinancing of the Myola Road property was slightly complicated because there was identified, at the last moment, a $25,000 shortfall between monies being advanced by the Commonwealth Bank and the balance outstanding to Statewide. 15On 24 July 2009, Ms Tarrant signed an acknowledgement which recited an agreement on her part for Statewide to transfer the balance of the outstanding loan with respect to Myola Road to the balance being claimed by Statewide from her and Mr Hawkins in proceedings with respect to their other property in Bardo Road, Newport. Statewide accepted this arrangement.

Bardo Road, Newport 16In February 2007, Ms Tarrant and Mr Hawkins purchased a property at Bardo Road, Newport. It was their intention that the Bardo Road property would be redeveloped and sold for a profit. 17To fund the purchase, Ms Tarrant and Mr Hawkins took out a loan of $2.02M from Statewide, which was secured by a mortgage dated 16 March 2007. In December 2007, Statewide made a further advance of $250,000, which was secured by the same mortgage. 18By May 2008, this Bardo Road loan had fallen into default and on 2 September 2008 a statement of claim was filed seeking judgment for the monies outstanding together with possession of the Bardo Road property. 19Ms Tarrant filed a joint defence with Mr Hawkins on 23 September 2008. 20In the defence, Ms Tarrant and Mr Hawkins admitted that the loan was in default. They pleaded that there were various technical barriers in the path of Statewide recovering the loan and in particular, they pleaded that Statewide had not complied with a variety of provisions of the Consumer Credit (NSW) Code . 21The defence did not raise any argument of the kind now encapsulated by the written submissions before me. No claim was made in the defence of any invalidity of the transaction because of undue influence, unconscionability or the like. No cross-claim advancing a claim for relief under the Contracts Review Act 1980, was filed. 22On 6 November 2008, Statewide moved for summary judgment. Ms Tarrant and Mr Hawkins were ordered to file any affidavit evidence upon which they relied to oppose that motion. After a number of directions hearings at which there was no appearance for Ms Tarrant and Mr Hawkins, the Court fixed the matter for final hearing to take place on 9 March 2009. 23On 9 March 2009, the proceedings came on for hearing before Hall J. Rather than a final hearing taking place, the parties agreed to short minutes of order. The short minutes recorded that Mr Hawkins, who was then the first defendant, consented to the orders sought in the statement of claim and agreed that he would not apply for a stay of any writ of possession which was to be issued. No orders were made against Ms Tarrant. 24The proceedings were stood over until 9 April 2009. The proceedings were then again adjourned to 14 May 2009. By letter dated 8 May 2009, Statewide notified Ms Tarrant that it intended to press for orders against her when the matter was heard on 14 May 2009. On that day, it came before Adams J. 25At the commencement of the hearing, the Court was informed that the solicitor on the record, Mr Pope, could no longer act for Ms Tarrant but that he was continuing to act for Mr Hawkins. It will be necessary to discuss the events of this day in some detail later, but it is sufficient to note that Adams J pronounced judgment against Ms Tarrant in her absence, and ordered the proceedings to be adjourned for one week. 26On 21 May 2009, the proceedings came before Adams J again. Ms Tarrant was represented by a new solicitor, Mr J. Mulally, and also by counsel. On that day, his Honour ordered that Ms Tarrant was to serve on Statewide a draft amended defence, together with an affidavit setting out the evidence upon which Ms Tarrant relied to substantiate the defence. 27On that basis his Honour ordered that the judgment against Ms Tarrant be stayed until further order. The matter was adjourned to 18 June 2009. 28On 17 June 2009, a document encapsulating the orders of 14 May 2009 was signed and dated by Adams J. 29On 18 June 2009, the matter came before Patten AJ. Ms Tarrant was represented by counsel instructed by Mr J. Mulally, solicitor. The parties agreed to the following orders which were contained in signed short minutes: "The Court orders: a. the proceedings be adjourned to 09 July 2009; The Court notes: a. the plaintiff and second defendant have agreed that: (i) the stay of judgment against the second defendant (ordered by Justice Adams on 21 May 2009) will be lifted on 9 July 2009; and (ii) the second defendant will not apply for a stay of any writ of possession that is issued." 30On 9 July 2009, the matter came before McCallum J. At the request of the parties, her Honour stood the proceedings over to 26 July 2009 and extended the stay of judgment until that date. 31On 27 July 2009, the matter was listed before McClellan CJ at CL. His Honour first dealt with the proceedings with respect to the Myola Road property to which I have earlier made reference. In respect of the Bardo Road property, his Honour ordered that the stay of judgment made pursuant to the order of Adams J of 21 May 2009 be lifted. 32The position which had been reached at that point was that the judgment which had been entered by Adams J on 14 May 2009 remained extant. Statewide had leave to issue a writ of possession forthwith and was entitled to an order for costs in its favour. 33As a consequence of that position, Statewide moved for enforcement. On 8 December 2010, the Bardo Road property was sold for about $1.42M. There remained a shortfall on the Bardo Road loan of about $1.4M, which Statewide sought to recover from Ms Tarrant. 34As a result, Ms Tarrant returned to the Supreme Court on 14 December 2010 with a notice of motion seeking the orders to which I have earlier referred. Davies J made orders by consent, in the following form: "1. Any further affidavit evidence to be filed & served by Ms Tarrant by 14 January 2011. 2. Any evidence in reply on behalf of the plaintiff to be filed & served by 28 January 2011. 3. Listed for hearing before Duty Judge on 7 February 2011. 4. Liberty to apply on 24 hours notice. 5. Costs reserved."

The Position of David Charles Hawkins 35Mr Hawkins consented on 9 March 2009 to judgment in the Bardo Road proceedings in accordance with the statement of claim. 36On 18 June 2010, Barnes FM made a sequestration order against the estate of Mr Hawkins as a consequence of an act of bankruptcy on 28 May 2009. Mr Hawkins took no part in the proceedings before me.

Issues for Determination 37In support of the orders sought in the amended notice of motion, Ms Tarrant argued the following: (a) That the judgment pronounced on 14 May 2009 was entered irregularly because: (i) it was filed and entered on a date when the stay ordered by Adams J was in place; and/or (ii) it was only intended by Adams J that the judgment be for possession of the land and not for the monetary sum; and/or (iii) she was not present, with good reason, when the judgment was pronounced and accordingly the judgment ought not be allowed to stand. (b) Statewide is estopped from maintaining and enforcing the judgment because of an arrangement which she entered into with Mr Hawkins, with the knowledge of Statewide, whereby each of Ms Tarrant and Mr Hawkins dissolved their landholding partnership and she was, as a result, released from any obligation to Statewide with respect to the Bardo Road property. (c) She had, but for the payment of $25,000, fully discharged all of her obligations to Statewide by refinancing the Myola Road property and by virtue of the agreement which she says was reached with Statewide by which she and Mr Hawkins separated their interests.

Judgment Entered Irregularly 38Ms Tarrant argues that the judgment was entered irregularly because although judgment was ordered by Adams J on 14 May 2009, the judgment was in fact entered or taken out on 17 June 2009, at a time when there was a stay of the judgment in existence. 39The hearing before Adams J on 14 May 2009, the parties' understanding of it, and the signing of the judgment by Adams J on 17 June 2009, therefore require some further examination. 40Leading up to 14 May 2009, Ms Tarrant and Mr Hawkins had been represented by one solicitor. Shortly before the hearing, the solicitor informed Ms Tarrant that he had a conflict of interest and could not continue to act for her. Although the formalities of ceasing to act had not been carried out, the solicitor made the position clear to his Honour on 14 May 2009. 41At the hearing on 14 May 2009, his Honour was provided with an affidavit of Ms Tarrant sworn 13 May 2009. That affidavit indicated that Ms Tarrant would be unable to attend Court, for good reason, on that day. Ms Tarrant then went on to describe in the affidavit her understanding of the position with respect to the two properties, including the execution of the partnership dissolution agreement, and some of the events surrounding the funding of, and redevelopment of, the Bardo Road property. She sought a further opportunity to: "... prepare the defence to the claim by the plaintiff against me ". The affidavit concludes with this paragraph: "22. I say to the Court that there are real and trialable (sic) issues relating to the mortgages between myself and the Plaintiff ...". 42It did not articulate any further detail about those issues. 43The transcript of the proceedings before Adams J on 14 May 2009 makes the following clear: (a) Statewide pressed the Court for judgment against Ms Tarrant, as it had warned her by correspondence that it would; (b) Judgment for possession of the Bardo Road property, and the monetary claim, had been entered on a previous occasion in favour of Statewide against Mr Hawkins; (c) Mr Hawkins and Ms Tarrant both remained legal proprietors of the Bardo Road property as joint tenants; (d) His Honour read the affidavit of Ms Tarrant of 13 May 2009 to which I have earlier made reference, and concluded that the affidavit did not outline any defence to Statewide's claim for orders with respect to the Bardo Road property; (e) His Honour indicated that while he proposed to make the orders sought by Statewide against Ms Tarrant, he would adjourn the proceedings for seven days to allow Ms Tarrant a further opportunity to advance any arguments against the relief sought; (f) the procedure adopted by his Honour to achieve this end was to pronounce the orders sought by Statewide, but to stay their enforcement for seven days. 44The transcript records that his Honour said: "In relation to the Bardo [Road] matter, I propose to make the orders sought ... I make orders against both [Ms Tarrant] and Mr Hawkins in respect of the Bardo [Road] property ... and the orders are in accordance with the statement of claim." 45A document encapsulating those orders was prepared by the solicitor for Statewide. Attempts were apparently made to have it filed and the orders formally sealed. Ultimately, the document was signed by Adams J on 17 June 2009. That document correctly records that the judgment was entered on 14 May 2009: r 36.11 of the Uniform Civil Procedure Rules 2005. 46The judgment was effective from 14 May 2009 because it was given or made on that day: r 36.4(1)(a) of the UCPR , and also because that was the day when the judgment was taken to be entered: r 36.11(2) of the UCPR . 47As this somewhat lengthy analysis demonstrates, the judgment was given, or made and entered on 14 May 2009 in the absence of Ms Tarrant, because although there was a solicitor on the record for her who was present in court, he clearly indicated to the Court that he was not appearing for Ms Tarrant on that day. 48However, it is clear from a number of circumstances that the judgment of Adams J was known to Ms Tarrant, at least, shortly after 14 May 2009. 49On 21 May 2009, Ms Tarrant was represented before Adams J by counsel and a solicitor. At the commencement of the hearing, counsel for Statewide asked the Court to "enter" the formal orders which had been drafted. A little later, counsel for Ms Tarrant acknowledged that: "... there is judgment against her ...", and sought that the Court: " Stay that decision against [Ms Tarrant] ". After further discussion and submission, Adams J said: "... I do stay the orders insofar as they affect Ms Tarrant ...". 50Adams J then stood the proceedings over until 18 June 2009, when it came before Patten AJ. The short minutes of order made that day, which I have set out in [29] above, indicate in the clearest terms that by that time, at the latest, Ms Tarrant had accepted that judgment had been ordered against her by Adams J. 51Ms Tarrant's argument that the judgment was irregularly entered is therefore fundamentally flawed and must fail. First, as I have already explained, the judgment was made by Adams J on 14 May 2009 and it was entered on that day. It is correct that his Honour ordered a stay of the judgment, but the stay of judgment was a stay on the enforcement of the judgment, not on the entry of judgment. 52As well, since the judgment was effective from 14 May 2009, there is no basis for any argument, or complaint, suggesting that the judgment was entered irregularly because the paperwork, by which the order was perfected, was completed during a period of a stay.

Judgment Limited to Possession Order 53Ms Tarrant's next argument is that the judgment entered by Adams J was only intended to include possession of the Bardo Road property, and not a monetary sum. 54This argument is also erroneous. These are the reasons why I am satisfied that this is so. 55First, it is clear from the transcript of the proceedings before Adams J on 14 May 2009 that his Honour intended that there be judgment entered with respect to all of the relief sought in the statement of claim, and the order signed by his Honour on 17 June 2009 confirms that interpretation. 56Secondly, on 21 May 2009 when the matter was before Adams J, Ms Tarrant was represented by counsel. The transcript indicates that counsel for Ms Tarrant was under no misapprehension but that judgment had been entered with respect to the entirety of the statement of claim, and that enforcement of the judgment was stayed pending Ms Tarrant filing a draft defence and supporting evidence sufficient to have the judgment set aside. 57Thirdly, the consent orders of 18 June 2009 signed by Ms Tarrant's solicitor make it plain that the judgment was in respect of the whole claim. 58There is no basis to suggest, as this ground does, that the judgment entered by Adams J was limited only to possession of the Bardo Road property.

Judgment Entered in the Absence of Ms Tarrant 59Ms Tarrant's next argument is that the judgment was entered irregularly because she was not present, with good reason, on 14 May 2009 when the judgment was entered. 60Up to shortly before 14 May 2009, Ms Tarrant was represented, jointly with Mr Hawkins, by a solicitor. The solicitor indicated to the Court on 14 May 2009 that he was no longer instructed for Ms Tarrant because there had arisen a conflict of interest, or at least a perceived conflict. 61His Honour was well aware that Ms Tarrant was not represented. His Honour was well aware why that was so. Nevertheless, his Honour proceeded, on the application of counsel for Statewide, to enter judgment. 62It has to be said that, against the background of the lengthy procedural history at that point in time, his Honour's approach was hardly surprising. 63The absence of a party at the time a judgment is entered is not, of itself, a sufficient basis for asserting that the judgment was entered irregularly, nor is it, of itself, a sufficient basis to set aside that judgment. However, since judgment was clearly entered in the absence of Ms Tarrant or someone instructed to appear for her, the Court has a discretionary power under r 36.16 of the UCPR to determine whether the judgment ought be set aside. 64An important consideration in the exercise of this discretion is whether Ms Tarrant has demonstrated that, if judgment were to be set aside, she would have an arguable defence. Ms Tarrant's remaining arguments, in estoppel and contract, go in substance to this issue. 65The factual commencement point to this analysis is the partnership dissolution agreement entered into on 24 November 2008 by Ms Tarrant and Mr Hawkins. I note that this agreement was made at a time after the commencement of the proceedings in this Court and whilst Statewide had solicitors acting for it. 66The agreement recited that Ms Tarrant and Mr Hawkins were the registered owners as joint tenants of the Myola Road property and the Bardo Road property. It recited that they "... wished to dissolve the partnership in their joint real estate assets and divide the assets between them ". 67The operative parts of the agreement achieved the following: (a) The partnership was dissolved as at the date of the agreement; (b) In consideration for the payment of $1, Ms Tarrant transferred her interest in the Bardo Road property to Mr Hawkins subject to the existing mortgages (one of which was to Statewide); and (c) For the payment of $1, Mr Hawkins transferred his interest in the Myola Road property to Ms Tarrant subject to the existing Statewide mortgage. 68The agreement does not on its face suggest that Statewide has any knowledge of the arrangement, nor does it provide for the notation of Statewide's agreement to the actions proposed. 69Transfers of the properties in the requisite form were signed on that date by each of Ms Tarrant and Mr Hawkins to give effect to the agreement. It does not appear from the evidence that those transfers were registered. However, I would infer that in order to give effect to the refinancing of the Myola Road property, it is probable that the transfer from Mr Hawkins to Ms Tarrant of his interest in that property has been registered. 70The dissolution of the partnership agreement came about as a consequence of advice which Ms Tarrant received from her accountants. 71Although the form encapsulating the agreement to which I have just referred was dated 24 November 2008, in her affidavit of 9 November 2009, Ms Tarrant said that the agreement was executed on 30 March 2009. 72It is clear that these assertions are in part beyond the actual knowledge of Ms Tarrant because they involve acts carried out by others on her behalf. In her affidavit of 4 February 2011 she says that all negotiations were conducted on her behalf by Mr Mulally with Statewide or Statewide's solicitors. 73In her affidavit, she also says this with respect to the reorganisation of her affairs, including the dissolution of a partnership: "My intention was that this arrangement would discharge my entire obligation to the plaintiff. My honest and sincere belief was until recently that Mr Mulally conducted my affairs in such a way as to discharge my obligations to the plaintiff in full with the discharge of the mortgage over the property at Myola Road apart from a small shortfall of $25,000 ...". 74Her subjective intention may well have been as she deposed. It is an entirely different question as to whether the arrangements gave effect to that intention. 75Ms Tarrant also deposes to signing a document headed "Acknowledgement" on 24 July 2009, which she accepts was done in the presence of Mr Mulally but suggests, perhaps somewhat faintly, that she did not have a full understanding of it. 76The "Acknowledgement" document substantially relates to the sum of $25,000 which was the shortfall on the settlement of the refinancing of the Myola Road property. In the Acknowledgement, Ms Tarrant agrees that the balance of $25,000 owing by her and Mr Hawkins to Statewide be transferred from the Myola Road proceedings to the Bardo Road proceedings. The document continues: "Therefore the balance owing to Statewide Secured Investments Limited will be as follows: 14347/2008 - XX Myola Road: $1,400,000. 14583/2008 - XX Bardo Road: $2,625,000. I further acknowledge that if the balance of $25,000 is not paid in full from the sale of the property located at XX Bardo Road within two months from Friday, 24 July 2009 (being Thursday, 24 September 2009), that I will remain liable to pay the above sum and Statewide Secured Investments Limited will commence charging interest on the balance of $25,000 plus any further interest owed on the loan facility for XX Myola Road until it is paid in full." 77Ms Tarrant agreed to give Statewide a charge over the Myola Road property to the extent of $25,000. 78Statewide relied upon the affidavit of its solicitor, Sachin Naidu, sworn 3 December 2010. Ms Naidu was not cross-examined upon the affidavit nor were its contents subject to any challenge. The affidavit made plain that Statewide had not consented to the transfer of the Bardo Road property from the joint ownership of Ms Tarrant and Mr Hawkins to the sole proprietorship of Mr Hawkins. Ms Naidu deposed to the fact that so far as Statewide were concerned, Ms Tarrant and Mr Hawkins had at all material times been and continue to be the registered owners of the Bardo Road property. 79In these circumstances I am not satisfied that the arrangements between Mr Hawkins and Ms Tarrant, whatever be her personal understanding of them, were effective in displacing either her joint ownership of the Bardo Road property or her obligations to Statewide under the Bardo Road loan. 80In reaching this conclusion I have had particular regard to the fact that Ms Tarrant did not herself take part in any of the negotiations with Statewide, the absence of any document that indicates Statewide's agreement to any arrangements between Mr Hawkins and Ms Tarrant in respect of the Bardo Road loan, and Statewide's denial of any knowledge of such arrangements. 81Ms Tarrant's argument that Statewide is estopped from maintaining and enforcing the judgment against her in respect of the Bardo Road property, because Statewide knew of the arrangement between her and Mr Hawkins and represented its acquiescence to her, must therefore fail. 82For there to be an estoppel by representation, the following elements must all exist: "(a) a statement or other conduct that constitutes a representation of fact; (b) its communication to the representee; (c) the representee's justifiable belief in its truth and his alteration of position based on the belief; (d) an attempt by the representor to contradict his representation; (e) prejudice to the representee as a result of his alteration of position if contradiction of the representation were permitted." See Handley, Estoppel by Conduct and Election , Thomson Sweet & Maxwell, 2006, p 3, para 1-006. 83Dixon J in Grundt v Great Boulder Proprietary Gold Mines Ltd (1938) 59 CLR 641 at 674-6 , said this: "The principle upon which estoppel in pais is founded is that the law should not permit an unjust departure by a party from an assumption of fact which he has caused another party to adopt or accept for the purpose of their legal relations. This is ... a very general statement. But it is the basis of the rules governing estoppel [which] work out the more precise grounds upon which the law holds a party disentitled to depart from an assumption ... ... Before anyone can be estopped, he must have played such a part in the adoption of the assumption that it would be unfair or unjust if he were left free to ignore it. But the law does not leave such a question of fairness or justice at large. It defines with more or less completeness the kinds of participation in the making or acceptance of the assumption that will suffice to preclude the party if the other requirements for an estoppel are satisfied." 84The extent to which particular elements of the requirement for an estoppel to operate may be identified can vary significantly with a wide variety of facts. 85But it is essential that the representee, here Ms Tarrant, can identify with some accuracy the representation which has been made and upon which she relied. The representation would have to be made, in the circumstances of this case, by Statewide. 86Her evidence does not reveal, and her solicitor did not identify with any precision, what was the conduct or statement by Statewide that amounted to a representation, and upon which she reasonably relied. 87At best, the case for Ms Tarrant seems to be that Statewide had accepted the refinance of the Myola Road property including the transfer of that property into her name in order to procure that refinance, and that this conduct engendered her reasonable belief that Statewide would not be proceeding further against her in respect of the Bardo Road loan. 88However, even articulating this as the conduct of Statewide, it is clear that no representation had been made by Statewide. There is no evidence that she has acted in any way to her detriment upon the basis of anything which Statewide did or did not do. 89There is no basis for any finding that Statewide is estopped from enforcing its entitlements under the loan with respect to the Bardo Road property. 90Ms Tarrant has no defence available to her upon the basis of this argument.

Full Discharge of Loan 91The other proposed defence put by Ms Tarrant is that her obligations to Statewide were fully discharged, but for the sum of $25,000, by her refinance of the Myola Road property. 92In order to succeed on this argument, she must demonstrate the existence of some agreement on the part of the Statewide to accept the refinancing of the Myola Road property in full and final discharge of all of her obligations under the Bardo Road property, except for $25,000. I have already found that no such agreement existed. 93This conclusion is fortified by the terms of the Acknowledgement which Ms Tarrant signed in front of her solicitor on 26 July 2009. A reading of that document makes it plain that there is no question but that the debt by Mr Hawkins and Ms Tarrant to Statewide with respect to Bardo Road continued to exist at that date in the sum of $2.6M.

Any Other Possible Defence 94In the outline of submissions in support of her amended notice of motion, Ms Tarrant did not identify, with any specificity, any other defence, except in these terms: "The defendant asks that she be allowed an opportunity now to defend these proceedings. If given the opportunity she would file a defence promptly which would be based on the undue influence of her husband at the time she entered into the loan agreements with the plaintiff and misconduct by the plaintiff regarding valuation and the building work at the property [Bardo Road]." 95At the hearing before me, the plaintiff did not produce any draft defence which sets out the nature of the defence articulated in this paragraph. She did not adduce any evidence capable of amounting to evidence of undue influence by her husband, nor of misconduct by Statewide regarding the valuation of and the building work at the Bardo Road property. 96I note that after 6 November 2008, when a motion seeking summary judgment was filed, Ms Tarrant was required to file and serve any affidavit upon which she relied by way of opposition to the motion for summary judgment and also on a final hearing of the proceedings. No such affidavit was filed, other than one which annexed the partnership dissolution agreement and gave a short outline description of the circumstances in which it was signed. 97As I have earlier recited, on 21 May 2009 Adams J ordered that Ms Tarrant was to serve a draft amended defence, together with an affidavit setting out the evidence upon which she relied to raise the defence. 98No draft amended defence or affidavit was filed. 99On 14 December 2010, Ms Tarrant was again required to file and serve any affidavit evidence upon which she relied on her application to set aside the judgment. 100To the extent that Ms Tarrant attempted to outline any such defence, it is to be found in her affidavit of 4 February 2011. Much of the content of that affidavit was objected to and much of it was not admitted. 101That affidavit discloses that Ms Tarrant was born in 1959. She is presently 51 years of age. She was educated to the conclusion of high school, and undertook nursing training thereafter. She has a Graduate Diploma in Adolescent Health & Welfare from the University of Melbourne. She works in various operating theatres in hospitals in Sydney as a qualified operating theatre nurse. 102She discloses that she married Mr Hawkins in January 2001 and that they have one son who was born in 2002. She says that Mr Hawkins, who had apparently told her he had qualified with a degree in law, had always been in control of all of the drafting documents in her legal matters and had chosen lawyers who had represented her. She also said that Mr Hawkins made all of the arrangements for the loans with Statewide and the Commonwealth Bank, and that she had relied upon him solely for advice. 103She concludes her affidavit by saying this of Mr Hawkins: "His confident, eloquent and determinant personality eclipsed my capacity for free and careful deliberation when I signed loan documents upon which the plaintiff relies." 104Ms Tarrant was not cross-examined on this statement. However, such evidence is not sufficient, in my opinion, to indicate that there is a defence of any kind to the loan and mortgage transaction. 105In Garcia v National Australia Bank Ltd (1998) 194 CLR 395 at 404 [21], Gaudron, McHugh, Gummow and Hayne JJ said: "The marriage relationship is such that one, often the woman, may well leave many, perhaps all, business judgments to the other spouse. In that kind of relationship, business decisions may be made with little consultation between the parties and with only the most abbreviated explanation of their purport or effect. Sometimes, with not the slightest hint of bad faith, the explanation of a particular transaction given by one to the other will be imperfect and incomplete if not simply wrong. That that is so is not always attributable to intended deception, to any imbalance of power between the parties, or, even, the vulnerability of one to exploitation because of emotional involvement. It is, at its core, often a reflection of no more or less than the trust and confidence each has in the other." 106In my assessment, these remarks are apt to apply to the arrangements between Ms Tarrant and Mr Hawkins. 107In Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447, the basis for a defence of the kind proposed was considered by Mason J. At 461, he said: "Historically, courts have exercised jurisdiction to set aside contracts and other dealings on a variety of equitable grounds. They include fraud, misrepresentation, breach of fiduciary duty, undue influence and unconscionable conduct. In one sense, they all constitute species of unconscionable conduct on the part of a party who stands to receive a benefit under a transaction which, in the eye of equity, cannot be enforced because to do so would be inconsistent with equity and good conscience. But relief on the ground of 'unconscionable conduct' is usually taken to refer to the class of case in which a party makes unconscientious use of his superior position or bargaining power to the detriment of a party who suffers from some special disability or is placed in some special situation of disadvantage ... Although unconscionable conduct in this narrow sense bears some resemblance to the doctrine of undue influence, there is a difference between the two. In the latter the will of the innocent party is not independent and voluntary because it is overborne. In the former the will of the innocent party, even if independent and voluntary, is the result of the disadvantageous position in which he is placed and of the other party unconscientiously taking advantage of that position." 108It is to be remembered that the decision of the High Court in Yerkey v Jones (1939) 63 CLR 649, a case to which reference was made in argument by Ms Tarrant's solicitor, and in particular in the judgment of Dixon J at 684, the facts which fell for decision involved the exercise by the husband on his wife of undue influence to procure his wife to become the his surety in circumstances where she obtained no direct benefit. That is not the case here. 109Here, the circumstances are very different from those referred to in Garcia , Amadio and Yerkey. 110The transaction entered into was for the benefit of Ms Tarrant, as well as her husband. They were joint tenants of the land which was purchased. One property was to be their matrimonial home and the other to be a development property from which they would obtain the benefit of profits, anticipated to arise from the redevelopment. 111As the agreement to dissolve their partnership indicates, they regarded the partnership between them with respect to purchasing land as an equal one and one in which they were equally entitled to all of the assets and liabilities. 112There is no evidence that Mr Hawkins behaved in any way inappropriately towards his wife. At best, the evidence to which I have earlier made reference indicates that his wife placed a great deal of trust in him and was content to rely upon his judgment. This, as the plurality judgment in Garcia makes plain, is an ordinary incident in a relationship of two people. 113The evidence does not demonstrate that there is open to Ms Tarrant any possible defence, by way of equitable relief, of the kind proposed by her or her solicitor.

Summary 114I have concluded that Ms Tarrant has demonstrated no basis at all upon which the judgment ought be set aside. 115The fact is that there is simply no evidence that she has any defence whatsoever to the claim by Statewide, even if judgment were set aside. 116In those circumstances I am not prepared to accede to the orders sought in the amended notice of motion.

Orders (1) Amended notice of motion filed on 7 February 2011 is dismissed. (2) The second defendant, Ms Tarrant, is to pay the plaintiff's, Statewide Secured Investments Ltd's, costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 March 2011

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