National Australia Bank Ltd; Application of Avant Garde Investments Pty Ltd (rec apptd) (in liq) [2023] NSWSC 1153

Supreme Court New South Wales

Medium Neutral Citation: National Australia Bank Ltd; Application of Avant Garde Investments Pty Ltd (rec apptd) (in liq) [2023] NSWSC 1153 Hearing dates: 6 September 2023 Date of orders: 22 September 2023 Decision date: 22 September 2023 Jurisdiction: Equity Before: McGrath J Decision: (1) Order pursuant to r 55.11 of the Uniform Civil Procedure Rules 2005 (NSW) that the sum of $360,153.41, together with interest on that amount, be paid to the applicant. (2) Order that the third respondent pay the applicant's costs of the proceedings. Catchwords: PRACTICE AND PROCEDURE – application for payment out of court of monies representing surplus funds held after mortgagee sale of property – Uniform Civil Procedure Rules 2005 (NSW), r 55.11 – whether the applicant has established prima facie entitlement to the monies – HELD – applicant has established entitlement to the monies – order for payment made out CONTRACTS – formation – whether Deed of Settlement executed by the parties takes effect as a valid deed – whether signature validly witnessed – lack of evidence adduced by the party challenging the validity of the execution of the deed – HELD – Deed of Settlement is a valid and enforceable deed – whether, if the Deed of Settlement is not an enforceable deed, the parties entered into a binding contract or agreement upon signing the Deed of Settlement – whether the parties objectively intended to be immediately bound by the terms of the Deed of Settlement – evidence of clear intention to be immediately bound by the terms of the Deed of Settlement – absence of post-contractual conduct indicating understanding on behalf of the third respondent to not be bound by the terms of the Deed of Settlement – HELD – Deed of Settlement is a binding contract or agreement – whether, if the Deed of Settlement is not a binding contract or agreement, the third respondent ought to be estopped from resiling from the terms of the Deed of Settlement – whether reasonable person would interpret the actions of the third respondent as indicative of an intention to be bound by the agreement – HELD – third respondent ought to be estopped from denying that the Deed of Settlement was a valid deed CONTRACTS – interpretation – whether terms of the Deed of Settlement are properly characterised as "conditions precedent" – language of the relevant clause demonstrates clear intention not to restrict enforceability of agreement in the event that obligations contained therein are not complied with Legislation Cited: Conveyancing Act 1919 (NSW) Electronic Transactions Act 2000 (NSW) Evidence Act 1995 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Centuria Property Funds Ltd v Thorn Australia Pty Ltd [2022] NSWCA 104 Council of the City of Sydney v Baboon Pty Limited [2020] NSWSC 1480 Crown Melbourne Ltd v Cosmopolitan Hotel (VIC) Pty Ltd (2016) 260 CLR 1; [2016] HCA 26 Darjan Estate Co plc v Hurley [2012] 1 WLR 1782 Fiona & John Sinclair Pty Ltd v Burns Bay Services Pty Ltd [2023] NSWSC 789 Grange v Sullivan (1966) 116 CLR 418 Hampton Court Ltd v Crookes (1957) 97 CLR 367; [1957] HCA 28 HCK China Investments Ltd v Solar Honest Ltd (1999) 165 ALR 680; [1999] FCA 1156 In the matter of Garslev Holdings Pty Ltd [2023] NSWSC 609 Jingalong Pty Ltd v Todd [2015] NSWCA 7 KPE Superannuation Fund Pty Ltd v Two Tempe Holdings Pty Ltd [2022] NSWSC 1614 Michael Kuehn & Jennifer Kuehn v Masterton Homes (NSW) Pty Ltd t/as Masterton Homes (NSW) Pty Ltd [2020] NSWSC 1049 NTT Australia Digital Pty Ltd v Cover Genius Services Pty Ltd [2020] NSWSC 1378 Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537 Prime Constructions v West Bridge Investments [2004] NSWSC 861 Re C & L Cameron Pty Limited [2012] NSWSC 676 Segboer v A J Richardson Properties Pty Ltd [2012] NSWCA 253 Stellar Vision Operations Pty Ltd v Hills Health Solutions Pty Ltd [2023] NSWCA 102 The Commercial Bank of Australia Ltd v G H Dean & Co Ltd [1983] 2 Qd R 204 Windsor Refrigerator Co Ltd v Branch Nominees Ltd [1961] 2 WLR 196 Yue Family Investment Pty Ltd atf Yue Family Investment Trust v Yin [2023] NSWSC 641 Category: Principal judgment Parties: Avant Garde Investments Pty Ltd (Receiver Appointed) (In Liquidation) (Applicant) Nabil Hamzeh (First Respondent) Royal Lion Capital Pty Ltd (ACN 623 525 833) (Second Respondent) Sikander Farooq Cheema (Third Respondent) Representation: Counsel: B Koch (Applicant) G Edwards (Third Respondent)