Mendoca v Tonna [2021] NSWSC 1627

Supreme Court New South Wales

Medium Neutral Citation: Mendoca v Tonna [2021] NSWSC 1627 Hearing dates: 6 December 2021 Date of orders: 6 December 2021 Decision date: 06 December 2021 Jurisdiction: Equity - Duty List Before: Kunc J Decision: Notice of motion dismissed with costs Catchwords: JUDGMENTS AND ORDERS — Effect of — "Liberty to apply in respect of the working out of these orders" — Inherent or other jurisdiction to vary final orders Legislation Cited: Conveyancing Act 1919 (NSW) Cases Cited: Australian Hardboards Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201; [2007] NSWCA 104 Fylas Pty Ltd v Vynal Pty Ltd [1992] 2 Qd R 593 Tonna v Mendonca (No 2) [2020] NSWSC 306 Category: Principal judgment Parties: Renuka Mendoca (Plaintiff)

Mark Tonna (First Defendant) Lorraine Tonna (Second Defendant) Representation: Counsel:

D Robertson and N Li (Plaintiff) P Newton SC and J Gatland (Defendants) J Breene (Solicitor) (Trustees for sale)

Solicitors:

Unsworth Legal (Plaintiff) Adams & Partners (Defendants) Breene & Breene Solicitors (Trustees for sale) File Number(s): 2021/115917 Publication restriction: No

EX TEMPORE Judgment (REVISED)

Summary 1. This application is another round in a long-running dispute between Mr and Mrs Tonna (the defendants, and applicants on the motion, to whom I shall refer without disrespect as the Tonnas) and Dr Mendonca (the plaintiff, and respondent to the motion) over the ownership of a property at Galston (the Property). 2. In an earlier judgment of this Court, Ward CJ in Eq determined that the beneficial interests in the Property were the Tonnas as to 28.87% and Dr Mendonca as to 71.13%. 3. On 4 June 2021, in these present proceedings in the Real Property List, Darke J made orders under s 66G of the Conveyancing Act 1919 (NSW) for the appointment of trustees for sale of the Property (the Trustees). His Honour also made orders about how the proceeds of any sale were to be applied, including that if one of the parties was the successful purchaser, "the successful purchaser may not apply the benefit of any asserted set-off entitlements or adjustments, against the purchase price". It is that term which is at the heart of the present dispute, which has been brought in the Duty List. 4. The auction of the Property on the instructions of the Trustees took place on 18 September 2021. The Tonnas were successful with a bid of $4 million, over-bidding Dr Mendonca. However, the Tonnas have only raised $3.5 million to make the purchase. The transaction is now subject to a notice to complete issued by the Trustees which called for the sale to be completed today. However, the Trustees have undertaken to take no action to terminate the contract for sale of the Property (the Contract) up to and including this Wednesday, 8 December 2021. 5. On 3 December 2021, the Tonnas filed the present notice of motion seeking to vary the orders of Darke J, the effect of which is that they would be entitled to complete the Contract by paying $3,056,596.79 to the Trustees. 6. For the reasons which follow, the Court will dismiss that motion, with the result that the orders made by Darke J are to remain in place in the form in which his Honour made them. 7. The Tonnas were represented by Mr P Newton of Senior Counsel with Ms J Gatland of Counsel. Dr Mendonca was represented today by Mr D Robertson of Counsel with Mr N Li of Counsel. Mr J Breene, Solicitor, appeared for the Trustees.