On 11 December 2019 at 4.30pm I was approached as Duty Judge to consider an application by the first defendant for a stay of an eviction that was due to take place at 9am the following morning at 13 Cove Street, Haberfield.
No notice of motion had been filed and the first defendant arrived in my Court without a solicitor, although she had it seems from the affidavit material had one acting on her behalf in both these proceedings and ongoing negotiations with the plaintiff up to as recently as a week or two ago. It was evident that the plaintiff's solicitor had not been notified of the intention to approach the Court at 4.30pm that day until it seems about an hour beforehand.
The affidavit of the first defendant dated 11 December 2019 annexed a number of documents and provided a history of enforcement proceedings that had led to default judgment being entered earlier this year.
I formed the impression from the documents that I was not being provided with a complete picture of the circumstances as they currently were between the defendants and the plaintiff. I formed the impression that the material provided was selective in its account.
This has since proven to be a correct impression.
Given the lateness in the day and the lack of clarity and the need in my view for the plaintiff to be represented on the application, I granted a very short stay of the eviction ordered until midday Monday 16 December 2019. In addition I made orders regarding service of material and I listed the matter to return before me today Friday 13 December 2019.
Today a Mr Vasta appears for the first defendant, despite the first defendant having informed me on 11 December 2019 that Mr Vasta and indeed any solicitor from the firm at which Mr Vasta works, were unavailable this week. Mr Vasta orally made application, without any notice of motion being filed, for the following two orders:
1. That the settlement that was due to take place on 26 November 2019 be allowed to take place and that the financial company who rejected the settlement and stopped it from proceeding minutes before settlement are not allowed to do that and that we are allowed to continue with the agreement that was made and that should have taken place on 26 November 2019.
2. A stay of eviction from 13 Cove Street, Haberfield for a period of three weeks.
In support of these orders, two affidavits of the first defendant were relied upon. The first was the lengthy affidavit I had granted leave to file in Court on 11 December 2019. The second was a further affidavit of the first defendant sworn 12 December 2019.
Senior counsel appearing for the plaintiff, Mr Young SC tendered two affidavits. I granted leave for those to be filed in Court given the very short timeframe within which the plaintiff was required to respond. Those affidavits are by two solicitors, Stephanie Jin sworn 12 December 2019 and Samantha Parsons sworn 12 December 2019.
It appears from her affidavit that Ms Jin had the conduct of negotiations and proceedings on behalf of the plaintiff. She is a solicitor employed by Summer Lawyers.
Ms Parsons is also a solicitor in the employ of Summer Lawyers. In her affidavit she has made it clear that her involvement is limited to having been retained in respect of a loan advance to be made by TNAL036 Pty Ltd and TC Security 001 Pty Ltd and that her retainer was limited to acting on behalf of those companies in relation to a proposed loan to NapSic Pty Ltd. The relevance of that loan will become clear shortly.
The background to the application is that in 2017, a loan of $3,000,000 was secured on two properties in Haberfield, 11 Yasmar Street and 13 Cove Street. I have been informed by Mr Vasta in submissions to the Court today that the nature of that loan was a "Low Doc" loan, which he explained to be a loan that, whilst it required repayments, was centred around an accountant certification about the capability of repayment of the persons or companies having taken out the loan. It had a high interest rate of 9.95%.
In January this year, it is common ground that there were problems making repayments on the loan and the repayments ceased.
I have been informed from the bar table and do not have complete clarity as to the date but accept that there was a request by the plaintiff for payment followed by advice that the property would be sold if payment was not made.
On 1 April 2019 a statement of claim was filed in this Court, seeking judgment for the plaintiff for possession of both properties as well leave to issue a writ of possession.
No defence was filed, and a notice of motion for default judgment on the claim for possession of land was filed in May 2019.
The writ of possession was executed on 23 August. On 4 October this Court ordered a stay of the writ of possession for a short period to 11 October.
There was a subsequent notice of motion filed for a stay of the writ of possession which was granted.
There was then a period of what seemed to be genuine negotiation attempts between the parties and the creation of a forbearance deed termed Deed of Release ("the Deed") dated 4 November 2019.
The Deed, amongst other provisions, specifies in the schedule a number of relevant matters. One is that the borrower was a company, CCC666 Pty Ltd, in liquidation, and the guarantors were Carmelo Dox, Giulia Penna, and Assuntina Laura Sabbarese. The schedule refers to two registered mortgages, a memorandum of mortgage, a loan agreement, a deed of guarantee, and miscellaneous borrower and guarantor documents in connection with those documents as "the security documents". The properties secured or identified as 11 Yasmar Street and 13 Cove Street, Haberfield, and the secured moneys are identified as $3,221,609.50 as at 30 September 2019, excluding enforcement, legal settlement and other costs.
There is then reference to a "settlement amount" as follows:
1. All net sale proceeds from the sale of the Yasmar land; and
2. All net proceeds from the refinance by TNAL036 Pty Ltd of the Cove land.
It common ground that at that point there had been negotiation with the company mentioned to refinance the Cove Street property, and there was pursuit of arrangements for settlement. In this context an email dated 20 November 2019 from Paul Reese at Summer Lawyers to Mr Vasta set out what Mr Vasta says was an agreement, although on my interpretation it was an offer of settlement, stating that Mr Reese was instructed that his client would accept:
1. All net proceeds from the sale of 11 Yasmar Street;
2. All net proceeds understood to be an amount of $1,292,000 from the refinance by TNAL036, in full satisfaction of all amounts owing to the mortgagee and conditional upon all parties executing a mutual deed of release and conditional upon settlement taking place by not later than Friday, 22 November 2019.
That email also mentions that "Your clients will also be required to immediately hand over withdrawals of the Yasmar land immediately. Of course, the caveat over the Cove land will need to be provided to the incoming mortgagee in order to facilitate the refinance. This is our client's counter offer and is their final offer."
I understand that paragraph to be a reference to withdrawals of caveat that had been lodged on behalf of one or some of the defendants as perceived necessary to protect the position of the defendants in respect of those properties.
It seems that a short extension was agreed between the parties as to settlement taking place. Although the sale of the Yasmar Street property went through and the proceeds were provided to the plaintiff back in October 2019, the Cove Street refinancing did not go through.
Mr Vasta submitted that it is his client's perception that there was some interference on the part of the plaintiff in the finance company identified going through with the refinance of the Cove Street property as discussed.
Affidavit material served on behalf of the plaintiff however indicates that what in fact occurred was that, in the process of due diligence being conducted on behalf of the finance companies, TNAL036 Pty Ltd and TC Security, the solicitor with the carriage of that advance file, found out that one of the guarantors, the first defendant, and the applicant seeking the orders before me today, had been permanently banned from ASIC from engaging in credit activities and also from providing financial services, and that this ban took place following an investigation by ASIC into her conduct as an agent of an Australian credit licensee.
The ASIC notification also recorded that ASIC had found that Ms Penna knowingly submitted false documents for a number of clients who were seeking motor vehicle finance, and had a history of conviction for fraud, and this was also the basis of her banning.
The ASIC notification recorded that Ms Penna has the right to appeal to the Administrative Appeals Tribunal for a review of ASIC's decision. I had no evidence before me about any such appeal having been lodged or pursued.
The ASIC notification is attached to Ms Parsons' affidavit. In addition to the matters I have just referred to, it also referred to the following matters as "background":
"…Ms Penna was convicted on 2 July 2010 in the Local Court of New South Wales at Burwood on various fraud offences related to making false statements to obtain money.
Between June 2012 and September 2012, Ms Penna, trading as CFG Financial Services, provided assistance to consumers to obtain motor vehicle finance and financial services relating to vehicle and equipment warranties".
Negotiations continued between the plaintiff's and the defendants' solicitors, including an allowance for a further period up to 11 December for the defendants to obtain refinance from an alternative company, given that the other refinance had fallen through.
The correspondence indicates that the plaintiff, as is their right and given that the deed or forbearance deed of settlement had not been complied with by the necessary time frame, nor within the short extension that was provided, reverted to the requirement that the full sum due, as well as costs and disbursements incurred, needed to be paid.
This has not happened to date.
[2]
Defendant's submissions
The defendant's submissions made by Mr Vasta were to the effect that there was something suspect about the settlement falling over on 26 November 2019. From the bar table he attempted to give evidence as to the "background" and his perception of the reasons why that was so. He suggested that because no written reason was given on the date of settlement but only three days later when an email was provided to the first defendant via the broker, this position was unsatisfactory and suspect.
The letter providing an explanation as to the settlement had not proceeded is dated 29 November 2019. It is on Pytriton Capital letterhead and is headed "Withdrawal of Loan Facility". It explains that two loan facilities of $1.365 million and $60,000 were approved on 11 October 2019 and 25 November 2019 respectively, subject to satisfaction of valuation and legal certification:
"…However, during our legal due diligence process we unfortunately found the below information which was not provided to us upon application of the loan. We were alerted by authority platform that one of the guarantors was involved in fraudulent activities and is black listed by ASIC. Under these circumstances, we have made the decision to cancel the advance of the facility, recall our funding and decline this application."
Mr Vasta submitted that there was on obligation for this Court to "look behind" what happened. He pointed out that it was his client's view that it was unfair that now the plaintiff was not prepared to honour the agreement previously made and was asking for a larger sum of money contrary to the agreement, i.e. instead of the $1.292 million, up to $1.5 million including costs and other expenses. This, he argued indicated that the plaintiff was acting "unfairly and unjustifiably" and were in effect charging a "huge sum of money" for legal costs for work that occurred in the last two weeks. He asserted that the plaintiff had done this deliberately, with some plan to sell the property and obtain money to which the plaintiff was not entitled.
In terms of the stay sought, Mr Vasta submitted that it would be difficult for his client to be able to achieve any refinance in under three weeks because of the time of year and that this Court should grant a further stay of three weeks to allow the defendants time to organise refinance.
[3]
Plaintiff's submissions
Mr Young SC made the following points in a persuasive and succinct fashion. He drew attention to the default judgment that included all the defendants, and the fact that the caveats referred to were never raised as a basis for a defence to the possession proceeding.
There had been two applications made to the Court to hinder the sale of the properties, one in August and one in October, the first in relation to Yasmar Street property and the October application in relation to the Cove Street property. There had been agreement reached as set out in the Deed for the plaintiff to accept a significantly reduced amount of money, clearly identifying that that significantly reduced amount did not include legal fees.
The arrangement was not honoured, despite it being a significant reduction in his client's entitlement under the mortgage agreement.
Mr Young explained that the assertions in respect of impropriety on the part of Summer Lawyers had no merit, given that the two solicitors worked in different teams and had no cross-over. Ms Parsons makes it clear in her affidavit that she acted for the incoming mortgagees only, and that what she found out was in the course of due diligence, as is appropriate, and that these were matters that unsurprisingly led to the funder making its own decision not to proceed.
Ms Jin's affidavit indicated that she was told that the finance had been withdrawn by the solicitor acting for the defendants, Mr Tolson, in his email of 2 December 2019. This was followed by some ongoing negotiations about what could be achieved. In an email of 2 December, Ms Jin confirmed that the payout figure will not remain the same and that the concession and offer made in November 2019 by her client was no longer available.
Given the figure previously advised was exclusive of legal costs, the figure now being sought is larger, obviously, first because of further interest incurred and second, because that figure now does include legal fees that have been incurred. Both amounts will continue to increase because of ongoing legal costs such as those of today and interest is being accrued.
In respect of order 1 as framed by Mr Vasta, Mr Young submitted that there is no cause of action at law or in equity that could possibly support or lead to that order being made.
Mr Young also noted that the assertions made by Mr Vasta that the plaintiff had engaged deliberately in conduct to "claw and cheat", resulted from a misunderstanding on his part of the differing roles of the incoming mortgagee's lawyer as opposed to the plaintiff's lawyer just because it was the same firm of solicitors. He submitted that the evidence of Ms Jin and Ms Parsons clearly shows the differentiation between those respective solicitors and the allegation of fraud, or whatever the allegation amounts to, is utterly unsustainable.
Mr Young also submitted that the costs were not incurred in the last few weeks, but actually cover costs over a longer period that were not previously included in the deed, where the arrangement proposed was clearly stated to be exclusive of legal costs.
Mr Young argued that there is no ground for a stay because nothing in the affidavit material indicates that finance can be achieved that would deal with the outstanding debt. There is evidence of two loan offers having been made in December, one of them was for $1.31 million and the alternative was for $1.330 million, but there is no clarity as to whether those loans will proceed or not.
Mr Young also submitted that there is no ground in law or in equity that confines the plaintiff to an offer previously made that it was prepared to accept as a compromise in November, but as it was not acted upon is now no longer willing to accept and his client is entitled to act as it has.
[4]
Considerations
I accept the submissions of Mr Young, that the first order proposed by Mr Vasta is not something that is underpinned by any basis known to law. Suggesting that this Court could, in any way, force the plaintiff to revert to an offer of settlement that it had previously made that was not accepted in time by the plaintiff, is an order that this Court cannot make.
There is nothing sinister, unexpected, or inappropriate in the way the plaintiff has gone about pursuit of its contractual rights vis-à-vis the defendants.
In respect of the stay of the eviction, I have taken into account the affidavit material of Ms Penna, which refers to the number of people living in the premises at Cove Street. That number is more than it was before because of the sale of the Yasmar Avenue, Haberfield property. She states that the people residing in the premises are herself, her three children; who are aged 31, 15, and 11, her husband, and her brother as well as an elderly aunt and son.
It is, indeed, a great pity that such a large number of people have been left on tenterhooks because of the inability of the guarantors and the company that initially took out the loan to honour their loan agreements, and act with proper alacrity and openness once these proceedings commenced in April 2019.
There is nothing in the affidavit material relied upon by Ms Penna that is of a nature that suggests anything other than obvious inconvenience that flows from persons being evicted from premises. I allowed a short stay of the eviction orders so that I could deal with this application on its merits despite it being sought at the last minute and despite the previous stay given back in August.
I have now considered the application carefully. I accept the submission made by Mr Young that there is nothing in the material relied upon by the first defendant that indicates that there is any prospect of a loan being approved for the necessary amount, let alone at a loan being approved in three weeks. This Court is not permitted to make stays of execution based on circumstances that may never occur. This Court has to ensure that it does not make orders that are pointless. It seems to me, having examined the history of the proceedings, the defendants have been given multiple opportunities to arrange their affairs and avoid eviction.
I am not satisfied on the material before me that there is any proper basis upon which to grant a further stay. I will not lift the stay currently in place and that means that the defendants have until midday on Monday to vacate the premises.
I make no formal order in relation to costs, and none was requested.
I formalised the position by making orders in Chambers as follows:
[5]
Orders
1. The orders sought by the first defendant articulated in paragraph 7 of this judgment are refused.
2. Unless the notice of motion signed by Mr Vasta, the solicitor for the first defendant is provided to my chambers by email by 5:00pm on Tuesday, 17 December 2019, the first defendant is to file a notice of motion in the registry seeking the orders sought orally in Court to regularize the Court file, by midday Friday, 20 December 2019.
[6]
Amendments
17 December 2019 - Amendment to Orders date on coversheet.
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Decision last updated: 17 December 2019