Supreme Court New South Wales Medium Neutral Citation: King v Brown (No.3) [2021] NSWSC 1116 Hearing dates: 27 April, 25 May, 20 July 2021 Date of orders: 2 September 2021 Decision date: 02 September 2021 Jurisdiction: Common Law Before: Schmidt AJ Decision: 1. There be judgment for the plaintiff against the first defendant for CAD2,134,924 comprising the principal amount owing under the Deed of Loan between the parties dated 7 June 2016 as varied on 7 June 2016 and 1 November 2016 (Deed of Loan) and the mortgage registered number AP82005A as varied on 7 June 2016 and 1 November 2016 (Mortgage); 2. There be judgment for the plaintiff against the first defendant for AUD1,472,544 comprising interest on the principal amount, legal costs and expenses and the Receiver and Manager's costs and expenses owing under the Deed of Loan and Mortgage; 3. There be judgment for the plaintiff against the first defendant for AUD82,611.97 comprising the amount paid by the plaintiff in satisfaction of irrigation charges owing by the first and second defendants; 4. There be judgment for the plaintiff against the second defendant for CAD2,134,924 comprising the principal amount owing under the Deed of Loan and Mortgage; 5. There be judgment for the plaintiff against the second defendant for AUD1,472,544 comprising interest on the principal amount, legal costs and expenses and the Receiver and Manager's costs and expenses owing under the Deed of Loan and Mortgage; 6. There be judgment for the plaintiff against the second defendant for AUD82,611.97 comprising the amount paid by the plaintiff in satisfaction of irrigation charges owing by the first and second defendants; 7. There be judgment for the plaintiff against the third defendant for CAD2,134,924 comprising the principal amount owing under the Deed of Loan and Mortgage; 8. There be judgment for the plaintiff against the third defendant for AUD1,472,544 comprising interest on the principal amount, legal costs and expenses and the Receiver and Manager's costs and expenses owing under the Deed of Loan and Mortgage; 9. Pursuant to section 101(2) of the Civil Procedure Act 2001 (NSW) that interest is payable on the judgments in paragraphs 1 to 8 at the prescribed rate from the date on which each judgment takes effect; 10. The Statement of Claim filed 26 March 2020 otherwise be dismissed; and 11. The Amended Statement of Cross Claim filed in court on 27 April 2021 be dismissed. Catchwords: JUDGMENTS AND ORDERS — In favour of plaintiff Legislation Cited: Civil Procedure Act 2005 (NSW) s 101(2) Category: Principal judgment Parties: Mr S King (Plaintiff) Mr G Brown (First Defendant) Mrs B Brown (Second Defendant) Riverpines Vineyard Pty Ltd (Third Defendant) Representation: Counsel: Mr P Newton (Plaintiff) Mr G Brown (Self – Represented) Solicitors: Anne McDonald Lawyers (Plaintiff) File Number(s): 2020/94610 Judgment 1. I gave judgment in this matter on 24 August 2021, dismissing the amended cross claim Mr and Mrs Brown and Riverpines had pressed and ordering Mr and Mrs Brown to pay Mr King's costs of the proceedings on an indemnity basis: King v Brown [2021] NSWSC 1060 (No.2) at [276]. 2. Mr King was there directed to calculate what he is owed under the mortgage in accordance with the conclusions reached in the judgment and to file and serve proposed orders within 7 days. He has filed proposed orders, together with a further certificate issued under the mortgage, certifying the amounts he is owed, calculated up the date of the judgment. 3. The parties were given liberty to approach if anything remained to be dealt with on the final calculation, given the conclusions I had reached as to how it had to be undertaken, on the proper construction of the mortgage. 4. Mr Brown has filed three documents. The first contains orders which have already been pressed and refused. The other two advance submissions and complaints about the conclusions reached in the judgment. They are not matters which can be entertained at this stage of the proceedings, the amended cross claim having been dismissed. 5. The only submission which Mr Brown there advanced which conceivably raised any issue with the calculation was that "There has been no consideration of the well documented AUD$138,000 paid to the plaintiff by the defendants on the mortgage loan." 6. That payment was, however, dealt with in the judgment at [48](12). There I noted that one of the matters not in issue at the hearing was that "on 10 April 2018 Mr and Mrs Brown repaid Mr King $138,000, which he acknowledged and took into account in his later calculation of what they still owed him". 7. In those circumstances I am satisfied that nothing now remains to be dealt with, but to make the final orders Mr King seeks. Accordingly, I order that: 1. there be judgment for the plaintiff against the first defendant for CAD2,134,924 comprising the principal amount owing under the Deed of Loan between the parties dated 7 June 2016 as varied on 7 June 2016 and 1 November 2016 (Deed of Loan) and the mortgage registered number AP82005A as varied on 7 June 2016 and 1 November 2016 (Mortgage); 2. there be judgment for the plaintiff against the first defendant for AUD1,472,544 comprising interest on the principal amount, legal costs and expenses and the Receiver and Manager's costs and expenses owing under the Deed of Loan and Mortgage; 3. there be judgment for the plaintiff against the first defendant for AUD82,611.97 comprising the amount paid by the plaintiff in satisfaction of irrigation charges owing by the first and second defendants; 4. there be judgment for the plaintiff against the second defendant for CAD2,134,924 comprising the principal amount owing under the Deed of Loan and Mortgage; 5. there be judgment for the plaintiff against the second defendant for AUD1,472,544 comprising interest on the principal amount, legal costs and expenses and the Receiver and Manager's costs and expenses owing under the Deed of Loan and Mortgage; 6. there be judgment for the plaintiff against the second defendant for AUD82,611.97 comprising the amount paid by the plaintiff in satisfaction of irrigation charges owing by the first and second defendants; 7. there be judgment for the plaintiff against the third defendant for CAD2,134,924 comprising the principal amount owing under the Deed of Loan and Mortgage; 8. there be judgment for the plaintiff against the third defendant for AUD1,472,544 comprising interest on the principal amount, legal costs and expenses and the Receiver and Manager's costs and expenses owing under the Deed of Loan and Mortgage; 9. pursuant to section 101(2) of the Civil Procedure Act 2005 (NSW) that interest is payable on the judgments in paragraphs 1 to 8 at the prescribed rate from the date on which each judgment takes effect; 10. the Statement of Claim filed 26 March 2020 otherwise be dismissed; and 11. the Amended Statement of Cross Claim filed in Court on 27 April 2021 be dismissed. ********** 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: 02 September 2021