Circuit Finance Pty Ltd v Castagnet Property Group Pty Ltd; Circuit Finance Pty Ltd v Louis Castagnet & Anor [2006] NSWSC 553

New South Wales Supreme Court

CITATION : Circuit Finance Pty Ltd v Castagnet Property Group Pty Ltd; Circuit Finance Pty Ltd v Louis Castagnet & Anor [2006] NSWSC 553

HEARING DATE(S) : Monday 5 June 2006

JUDGMENT DATE : 8 June 2006

JUDGMENT OF : Simpson J

DECISION : plaintiff to be restrained from acting upon the consent orders of 16 May 2006; injunction to be unconditional; parties to prepare short minutes of order in accordance with reasons for judgment

Circuit Finance Pty Ltd - Plaintiff PARTIES : The Castagnet Property Group Pty Ltd - Defendant in proceeding numbered 13920 of 2005 Louis Castagnet - 1st Defendant in proceeding numbered 13921 of 2005 Patricia Castagnet - 2nd Defendant in proceeding numbered 13921 of 2005

FILE NUMBER(S) : SC 13920/05; 13921/05

COUNSEL : RJ Brender - Plaintiff PE King - Defendants

SOLICITORS : Leonard Deane Lawyers - Plaintiff Segal & Associates - Defendants

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SIMPSON J

Thursday 8 June 2006

13920/05 Circuit Finance Pty Ltd v The Castagnet Property Group Pty Ltd 13921/05 Circuit Finance Pty Ltd v Louis Castagnet & Anor

JUDGMENT 1 HER HONOUR: Two related proceedings are before the Court. In each, the only issue for present determination is whether an injunction ought be granted to the defendant(s), restraining the plaintiffs from proceeding to implement orders, described as "consent orders" dated 16 May 2006. (In fact, no such orders have yet been made. It will be necessary to set out the circumstances of the events leading up to the creation of the document so entitled.) 2 The substantive proceedings in each case were commenced by Circuit Finance Pty Ltd by statement of claim filed on 29 August 2005. The plaintiff claimed orders for possession of land situated at 6/97-99 Birraga (sic) Road Bellevue Hill (proceedings numbered 13920/05), of which the Castagnet Property Group Pty Ltd is the registered proprietor, and at 119 Wallis Street Woollahra (proceedings numbered 139121/05) of which Mr Louis and Ms Patricia Castagnet are the registered proprietors. The plaintiff holds a second mortgage over each property. The defendants are in default in payments under the mortgages. 3 On 25 January 2006 default judgment against each defendant was entered, and the defendants were ordered to give possession of the land to the plaintiff. Thereafter the parties negotiated with a view to enabling the defendants to refinance. On 23 March 2006 the defendants filed notices of motion seeking orders that the default judgments be set aside, that any action by the Sheriff on the default judgments be stayed, and that execution of the writs of possession be stayed. On 3 May Registrar Howe granted a temporary stay of each writ, the stays being operational until 12 May. On that day McClellan CJ at CL extended the stay until 15 May. 4 On 15 May the legal representatives of the parties signed documents containing the terms of orders that were, the following day (16 May), made by Hidden J by consent. The principal order was that the writs of possession be stayed until 4 pm on 7 August 2006. The balance of the proceedings were stood over to that date. 5 The terms also noted agreements between the plaintiff and the defendants. These include provision for staged payments of money by the defendants to the plaintiff. The defendants were required to pay at least $100,000 by 4.00 pm on 26 May 2006; at least $400,000 by 4.00 pm on 23 June 2006; one half of the then balance of indebtedness, if any, by 4.00 pm on 21 July 2006; and any outstanding balance by 4.00 pm on 4 August 2006. Also contained in the terms were the following: