GKQ Mortgages Pty Ltd v Forsyth & Anor [2010] NSWSC 1305

New South Wales Supreme Court

CITATION : GKQ Mortgages Pty Ltd v Forsyth & Anor [2010] NSWSC 1305

HEARING DATE(S) : 10 November 2010 JURISDICTION : Equity

JUDGMENT OF : Pembroke J

EX TEMPORE JUDGMENT DATE : 10 November 2010

DECISION : See judgment

CATCHWORDS : EQUITY - cleans hands - knowingly false statement - direct connection with right sought to be protected - INJUNCTION - refusal - absence of clean hands

CATEGORY : Principal judgment

Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 CASES CITED : Fast Funds Pty Ltd v Coppola; Coppola v Hall [2010] NSWSC 470 Myers v Casey [1913] 17 CLR

PARTIES : GKQ Mortgages Pty Ltd Gavin Mark Forsyth & Keryn Leigh Forsyth

FILE NUMBER(S) : SC 2009/289985

COUNSEL : G George - for the plaintiff P Moloney, solicitor - for the defendants

SOLICITORS : Bransgroves Lawyers - for the plaintiff Moloney Lawyers - for the defendants

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

PEMBROKE J

WEDNESDAY 10 NOVEMBER 2010

2009/289985 - GKQ MORTGAGES v GAVIN MARK FORSYTH & ANOR

EX TEMPORE JUDGMENT

1 This is an application for an interim stay of a judgment for possession of land pending the hearing of the defendants' application to set aside a default judgment against them. That judgment was entered on 9 October 2010. In substance, the application is for urgent interlocutory relief to restrain the plaintiff from exercising its legal rights. 2 The facts are conveniently set out in the judgment of Ward J given on 15 October 2010. There is no need for me to repeat them. 3 On 4 November 2010 the defendants came before me in the Duty Judge's List. They were represented by Mr Moloney who filed in Court a Notice of Change of Solicitor and a Notice of Motion seeking ex parte interlocutory relief. After 4.00 pm on that day I granted an overnight injunction and directed service on the plaintiff by 6.00 pm. 4 On that application Mr Moloney made a brief reference to a prior application. In fact, on 15 October Ward J had already dismissed a substantially similar application and given comprehensive reasons for doing so. I was not informed that the writ of possession had issued on 19 May 2010. Nor was I informed that the first named defendant was an undischarged bankrupt. The Court file did not contain the Reasons for Judgment of Ward J, which only became available to me yesterday. Those reasons set out fully and carefully the many discretionary considerations that led her to dismiss the application. I propose to dismiss this application as well. 5 In doing so, I adopt the reasons of Ward J but there are four further matters which justify me in refusing to grant the injunctive relief which the defendants seek. Re-Litigation 6 It is a settled principle of law that, with few exceptions, Courts do not permit the re-litigation of disputes. It is undesirable in the public interest and disruptive of an orderly system for the administration of justice. It may result in vexation and unfairness to the successful party in the previous proceedings. This principle applies equally to interlocutory orders: Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44. As McLelland J said in that case: "It would be conducive to great injustice and enormous waste of judicial time and resources if there were no limit on the power of a party to have any interlocutory application or order re-litigated at will." 7 In this case, the defendants' application for interlocutory relief before Ward J was dismissed after a contested hearing. The reasons of Ward J are founded on discretionary considerations that favour the plaintiff. The defendants contend they are entitled to re-litigate the matter because there has been a material change of circumstances. That change is said, in substance, to be that the defendants have changed solicitor and that their new solicitor has become aware that the business purpose declaration provided to the plaintiff in connection with the loan contravened the Consumer Credit Code. 8 I do not regard this as sufficient to warrant any deviation from the general principle for two reasons. First, the dismissal of the application by Ward J was based on discretionary considerations which are as strong now as they were on 15 October. In fact, with the passage of time they are stronger. Second, the business purpose declaration contains a knowingly false statement by the defendants. I will deal with this issue further below.