New South Wales Supreme Court CITATION : Perpetual Trustees Victoria v Geoffrey Alfred Rixon [2001] NSWSC 329 FILE NUMBER(S) : SC 11018/00 HEARING DATE(S) : 17/04/01;19/04/01;20/04/01 JUDGMENT DATE : 24 April 2001 PARTIES : Perpetual Trustees Victoria Limted v Geoffrey Alfred Rixon JUDGMENT OF : O'Keefe J at 1 COUNSEL : SOLICITORS : Heidtman & Co - For plaintiff Ms D Karageorge - For defendant CATCHWORDS : Possession by mortgagee - Consent judgment for possession - Offer to pay out mortgagee - Stay - Failure to honour pay out arrangement - Refusal of continuation of stay DECISION : Claim dismissed with costs. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION O'KEEFE J TUESDAY 24 APRIL 2001 11018/00 - PERPETUAL TRUSTEES VICTORIA LIMITED v GEOFFREY ALFRED RIXON JUDGMENT 1 HIS HONOUR: On 17 April 2001 a stay of execution was ordered by the Court in proceedings No. 11018 of 2000. Those proceedings concerned premises at 1 James Street, Melrose park, being the whole of the land comprised in Certificate of Title 4/19730, which were occupied by the defendant, Geoffrey Alfred Rixon (Mr Rixon). 2 The stay was granted and later continued until 3.45pm on Friday, 20 April 2001. The matter was adjourned to that date and time on the basis that Mr Rixon said he had finance in place to enable him to re-finance the property, the subject of a writ of possession. The original application for a stay was made at the eleventh hour, that is on the eve of execution by the Sheriff. It was in my capacity as duty Judge that I granted the initial stay to Mr Rixon, who appeared on that occasion without legal representation. 3 When the matter came back before the Court, Mr Rixon was represented by Mrs Karageorge, solicitor. The plaintiff, who then appeared by counsel, opposed Mr Rixon's application for an extension of the stay which had been granted. Mr Rixon's solicitor tendered material and informed the Court of certain matters, principal amongst which was that an appointment for a settlement by pay-out of the plaintiff's mortgage had been arranged for Friday 20 April 2001. In support of that statement a letter purporting to be signed by an employee of Mr Pickering, the solicitor acting for Mr Rixon in connection with the asserted re-financing of the property, stated that Friday 20 April 2001 had been fixed as the date for settlement. No time was stated in that letter at which it was settlement was said to be going to take place. Counsel for the plaintiff informed the Court that his instructions were that no such appointment had been made. Nevertheless, a continuation of the stay was granted until 3.45pm on 20 April 2001 to enable Mr Rixon to complete the re-financing arrangements and use that re-financing to discharge the mortgage of the plaintiff. 4 On that occasion the matter was then adjourned until 3.45pm on 20 April 2001, it being the Court's understanding, from what it had been informed by Mr Rixon and Ms Karageorge, that settlement would take place at 2.30p.m. on 20 April 2001. At 3.45 p.m. on 20 April 2001 there was no appearance by or on behalf of Mr Rixon. There was still no appearance by him or on his behalf by shortly after 4 pm. At that time counsel for the plaintiff sought and was granted leave to file in court an affidavit of Alan McMurrin of 20 April 2001. That affidavit deposed to the fact that at the request of the solicitor for Mr Rixon, the time for the settlement of the discharge of the plaintiff's mortgage had been postponed until 3pm on 20 April 2001. The affidavit further stated that there was no appearance by or on behalf of Mr Rixon at that appointed time, nor did he, or his solicitor Mr Pickering, appear thereafter. Furthermore no message had been received from either Mr Rixon or Mr Pickering as to their non-attendance at the time proposed for settlement. Due to their non-appearance an attempt was made to contact Mr Pickering, but he did not take the calls. The settlement did not take place. 5 As a consequence of the effluxion of time the stay which had been granted lapsed at 3.45pm. There was then no applicant to ask for an extension, and in the light of the evidence that had been tendered on behalf of the plaintiff, it was not extended. An order for costs was made against Mr Rixon, including the costs that had been reserved. 6 At approximately seven minutes to five on Friday 20 April 2001, a telephone call was received in my Chambers. As my staff were not then present, I answered the telephone. It was Mr Rixon. He said he wished to make an application. I told him I could not discuss the matter with him and asked him to ring back in approximately a quarter of an hour when my staff would be present. He rang back at about 5.20pm. The call came from the Security section of the Supreme Court and was on the Duty Judge's mobile phone. Arrangements were then made for Mr Rixon to make his application in court on that evening. In the meantime, my Chambers contacted the solicitor for the plaintiff and asked him to appear in No.1 Court King Street where the matter was to be heard. He was able to arrange for counsel who had appeared in the matter, Mr Newton, to appear with him. 7 There was no shorthand writer available at that time of night. As a consequence, makeshift arrangements were made to record, on a small office dictating machine, what transpired in the Court. The effectiveness of that is yet to be determined, since the exigencies of time have not enabled the matters recorded on that tape to be retyped. 8 At the conclusion of the proceedings, during which Mr Rixon gave evidence and was cross-examined, I declined, in the exercise of discretion, to grant a stay of execution of the warrant for possession which had issued and advised the parties that I would give my reasons for that decision on Monday 23 April 2001. Due to other Court matters, it was not possible to do that, hence the reasons for judgment are being given today. 9 The matter has a long history. Default occurred in the first half of 2000 and has continued unabated since. On 2 May 2000 the plaintiff filed its statement of claim seeking an order for possession of the premises in question. After some delay, namely on 16 June 2000, Mr Rixon filed a notice of his defence. There was then a status conference held on 4 August 2000 at which Mr Rixon appeared in person and requested an adjournment to allow re-financing to take place. As a consequence the matter was adjourned until 1 September 2000. 10 On 1 September 2000 there was a further status conference held. Again, Mr Rixon appeared in person. Again, the proceedings were, at his request, adjourned; the reason being to allow him to re-finance with Foxcorp Pty Limited. The adjournment was until 15 September 2000. 11 On 15 September 2000 a third status conference was held. At this conference Mr Rixon was represented by Miss Tancred, solicitor, and the proceedings were stood over to 6 October, it being apparent that the re-financing arrangements had not been put in place. 12 When nothing occurred in the intervening period, the plaintiff filed a notice of motion for summary judgment on 3 October 2000. That is some five months after the statement of claim had been filed. 13 The matter was called over before Mr Justice Greg James on 6 October 2000 when Miss Tancred again appeared for Mr Rixon and advised the Court that re-finance would be available by 11 October 2000. This was the first time that a definite date had been nominated, but it was firm and, according to the evidence, without reservation. As a consequence of that statement, and at the request of Mr Rixon, the matter was, by consent, adjourned until 20 October 2000. 14 When the matter was listed on 20 October 2000 before Greg James J, Miss Tancred again appeared and filed an affidavit which she had sworn that very day, in which an adjournment for two weeks was sought to enable re-financing to be completed. His Honour acceded to this request and stood the matter over until 3 November 2000 and the notes of the Court revealed that an assurance was noted "that re-finance had progressed and a further seven days only was needed to complete the re-financing". 15 On 3 November 2000 the matter was again called over before Greg James J. Miss Tancred again appeared. She filed a further affidavit, again sworn on the very day on which the matter was listed for hearing. In it she set out reasons for the failure to obtain finance and sought an adjournment of two weeks to ascertain whether alternative finance could be obtained. Orders were then made by the Judge requiring affidavits to be filed and standing the proceedings over until 1 December 2000. 16 On 1 December 2000 the matter was again listed before Greg James J. Miss Tancred again appeared. Yet again she applied for an adjournment. Mr Rixon, who had been directed to file affidavits by 17 November 2000, had not done so. The time for doing so was extended until 4 December 2000 and the plaintiff was given leave to approach the Court for a hearing date. The proceedings were then adjourned until 15 December 2000. 17 On 15 December 2000 the matter was again listed before Greg James J. On this occasion Mr Cassidy QC appeared for Mr Rixon and terms of settlement, handwritten and signed personally, inter alios, by Mr Rixon, were handed up. By those terms the matter was adjourned until 14 February 2001 In the terms Mr Rixon recorded that he acknowledged the plaintiff's right to possession of the property and the plaintiff's right to exercise its power of sale. The terms further provided: "In the event the defendant is unable to obtain re-finance on or before 14 February 01, the defendant consents to judgment being entered against him in accordance with the judgment annexed and marked A." 18 In those terms of settlement there was a further particular term indicating the defendant's knowledge of the contents of the terms and his understanding of them. That was in the following form: "4. The defendant acknowledges that he has read and understands the terms of settlement and the judgment and has received legal advice in relation to their terms and effect." 19 Annexure A to those terms was a consent order which included the following: "1. Judgment be entered in favour of the plaintiff. 2. The plaintiff be granted possession of the property being the whole of the land comprised in Certificate of Title 4/19730 and known as 1 James Street, Melrose Park, NSW. 3. Leave be granted to the plaintiff to issue a Writ of Possession forthwith in respect of the property." 20 On 2 March 2001, there having been no settlement nor, as far as the Court files reveal, any re-financing, application was made by Mr Rixon to withdraw his consent to the entry of judgment. After some argument that matter was stood over until 9 March 2001. On that occasion Greg James J refused to allow the consent to the entry of judgment to be withdrawn. The Court file notes that Mr Rixon appeared in person and that the following orders were made: "1. Defendant's application to withdraw consent to the entry of judgment in accordance with the Terms of Settlement handed up to the Court on 15 December 2000 be dismissed. 2. The defendant pay the plaintiff's costs of 2 and 9 March 2001. 3. The matter be referred to the Attorney General in relation to Mr Rixon's assertion that Justice James had contacted Mr Krenizer, an in-coming mortgagee." 21 I should indicate that a reading of the transcript of the hearing before Greg James J reveals that Mr Rixon did advance such an assertion, however, he did not do it as his own assertion, but as an assertion which he claimed had been made by somebody else, and he followed that by a disavowal of his belief that such an event had occurred. However, the Court file, with the note 3 to which I have just referred to, accurately records what in fact was done. 22 Against this background, judgment was granted on 9 March 2001 and formally entered on 28 March 2001. It was following the entry of such judgment and following the making of an appointment with the Sheriff to execute that judgment that the application for a stay was first made by Mr Rixon in person to the then Duty Judge, who happened to be me. That ex parte application on 17 April 2001 resulted, as I have indicated, in a stay of proceedings until 19 April 2001. That date was fixed because there was correspondence tendered which asserted that settlement of the proposed or supposed re-financing was to be effected on 17 April 2001. No settlement took place on that date and the extensions of time to which I have referred earlier in this judgment were then discussed, further extension of time granted; the last extension of which lapsed at 3.45pm on 20 April 2001. 23 I dismissed Mr Rixon's claim made late on Friday 20 April 2001. That was done for the following reasons: 1. I was not satisfied that there was a proper basis established for the granting of a stay. 2. I was not satisfied that if a stay were to be granted, settlement of the amount outstanding to the plaintiff would be effected and the plaintiff's mortgage discharged. 3. I was not satisfied that adequate finance had in fact been put in place to effect a discharge of that mortgage. 4. The history of the matter, which I have already detailed, gave no cause whatsoever for confidence that the assertion of re-financing and settlement would be achieved, should a stay be granted, any more than it had over the many, many months that had transpired since that such matter was first raised. 5. I did not accept Mr Rixon as a reliable witness. During the course of his evidence he equivocated on a number of occasions, altered his story, and at times gave evidence which belied any credibility. He was a most unsatisfactory witness. 6. I was not satisfied as to: (a) Mr Rixon's explanation as to his failure to settle the matter by paying out the mortgage on 20 April 2001 as arranged; (b) his ability and bona fides as to settlement in the week or so following. 7. The consistent and considerable delay that had occurred to date, that is to last Friday, on Mr Rixon's part. 8. The fact that the judgment pronounced on 9 March 2001 and entered on 28 March 2001 was by consent. 9. The fact that Greg James J refused leave to Mr Rixon on 9 March 2001 to withdraw his consent to the stay of judgment in accordance with the terms of settlement of 15 December 2000 and gave leave to enter judgment on that date. 10. The lack of utility of a stay in view of: (a) the claim that settlement was going to be effected on 30 April, or not later than 30 April 2001; (b) the inability of the plaintiff to have the Sheriff execute the judgment prior to that date, the plaintiff having lost the benefit of its earlier appointment with the Sheriff to execute the judgment. 24 For those reasons I dismiss the claim with costs. ********** Last Modified: 05/11/2001 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.