Supreme Court New South Wales Medium Neutral Citation: Provident Capital Ltd v Anderson [2011] NSWSC 315 Hearing dates: 8 April 2011 Decision date: 18 April 2011 Jurisdiction: Common Law Before: Rothman J Decision: (i) That the defendant, pending the hearing and determination of these proceedings, be restrained from entering Barry Station without the written consent of the plaintiff and, if so, and to the extent required by the plaintiff, on such terms as the plaintiff may impose . (ii) That, within 14 days of the date of this order, the defendant file and serve an affidavit in these proceedings in which he explains with precision: (a) what has become of the cattle which he removed from Barry Station; and (b) what has become of the trucks, plant and equipment and other items which he removed from Barry Station. Catchwords: INTERLOCUTORY ORDERS - protection of property and goods in dispute - mortgages over real estate and goods mortgage related to farming - serious question to be tried - balance of convenience favours making orders Legislation Cited: Family Law Act 1975 Supreme Court Act 1970 Civil Procedure Act 2005 Category: Interlocutory applications Parties: Provident Capital Ltd (Plaintiff) Ian Maxwell Anderson (Defendant) Representation: Counsel: N. Beaumont (Plaintiff) C. Purdy (Defendant) Solicitors: Tiernan Lawyers (Plaintiff) Richard Wilson (Defendant) File Number(s): 2010/159025 Judgment 1The plaintiff, Provident Capital Ltd (hereinafter "Provident"), seeks interlocutory orders against the defendant, who, it is said, is in default of certain mortgages. The proceedings were commenced by a short form of statement of claim for possession, which statement of claim cites mortgages over land and seeks possession of the land, known as "Barry Station". The dispute between Provident and Mr Anderson extends beyond real property interests to an alleged default in relation to a goods mortgage. The goods mortgage relates to goods on Barry Station. 2At this stage, all that is sought is interlocutory orders, the obvious purpose of which is the protection of the real and personal property pending the finalisation of the proceedings. Serious question to be tried 3As earlier stated, each of the mortgages are in evidence before the Court. The goods mortgage (Annexure D to the Affidavit of Mr Tiernan) was executed at the same time as the real property mortgages which are, respectively, Annexures A, B and C to the same Affidavit. There seems to be no dispute, at least for the purposes of the interlocutory proceedings, that there is default in these mortgages. 4Proceedings were commenced on 25 June 2010 seeking possession of the real property. There was considerable delay caused, amongst other things, by an inability to serve the statement of claim because of which inability the Court ordered substituted service. The substituted service was effected on or about 28 October 2010. The defendant did not file or serve his defence until 15 December 2010. 5There are allegations of waste of the property. There is evidence supporting that claim, although the claim is denied. In relation to that waste, the plaintiff sought undertakings from the defendant, which undertakings have been refused, but the defendant denies the waste and allegations of the removal of property, to which I will next come. 6On 26 August 2010, consent orders issued under the Family Law Act 1975 which consent orders were made between the defendant Mr Anderson and his de facto, Ms Sonya Monica Coghlan. Those orders were in or to the effect of declaring that Ms Coghlan had no further interest in Barry Station and that Mr Anderson would, "subject to any loan thereon", transfer a list of personal property to Ms Coghlan. 7On 31 March and/or 3 April, a number of items of personal property were transferred from Barry Station to Ms Coghlan's property. The defendant alleges that this transfer occurred on 31 March 2011. The plaintiff alleges that it occurred after 1 April 2011. The date is significant. 8Notwithstanding what might seem to be the effect of consent orders issued out of the Family Court, Mr Anderson continues to live in the same premises and on the station owned by Ms Coghlan. The property transferred includes 1,500 head of cattle, trucks, plant and equipment and other items. 9On 1 April 2011, the Court, Fullerton J, issued orders restraining Mr Anderson from removing, damaging, disposing or otherwise dealing with any real or personal property, which is the subject of any of the mortgages. This is the reason for the significance of the difference in date between 31 March 2011 and 3 April 2011. 10There is no doubt that there are loans on some, if not all of, the equipment transferred from Barry Station to Ms Coghlan's property. There is some issue as to whether or not the mortgages cover the cattle. The issue as to the coverage of the cattle relates to whether or not a goods mortgage, by understanding of the industry and/or custom and practice, covers cattle. Notwithstanding that issue, there is sufficient material before the Court to determine that there is a serious question to be tried that goods and personal property that is the subject of mortgage to the plaintiff, Provident, has been transferred by Mr Anderson in an attempt to avoid the effect of his default in those mortgages. Balance of convenience 11The notice of motion seeks orders that the defendant file and serve affidavits explaining with precision what has become of the cattle removed from Barry Station and what has become of trucks, plant and equipment and other items removed from the property. 12It also seeks a return of the cattle and a return of the trucks, plant and equipment and an account for the proceeds of sale of any of the foregoing. 13At this stage, it would be premature for the Court to order the return of the cattle, particularly given the issue between the parties as to whether the cattle is, in fact and law, mortgaged pursuant to the mortgages upon which Provident relies. 14Likewise, it is unclear to the Court what, if anything, has happened to the other trucks, plant and equipment and other items. Therefore it is premature to order the return of that equipment and it is also premature to order an account for the proceeds of sale in circumstances where there may have been no sale. 15Nevertheless, it is appropriate to prevent Mr Anderson from entering Barry Station except for the purposes of complying with the orders of the Court and it is appropriate that Mr Anderson file and serve an Affidavit explaining precisely what has happened to any goods, including cattle, that were on Barry Station and which have been removed in the last three months. 16Plainly, the balance of convenience warrants an explanation by the defendant as to what has occurred to the property that is in dispute. 17One issue that was raised by Mr Anderson in defence of these interlocutory orders, was that the statement of claim sought enforcement only on the real property mortgages and not the goods mortgage. It has clearly been the case that the parties have been at issue in relation to the goods mortgage. The goods mortgage, and the property covered by it, has been the subject of agitation before this Court, for some period of time. It cannot be said that Mr Anderson was under any misapprehension as to the matters that Provident was seeking to have the Court deal with. 18If, as is suggested, the statement of claim is in an inappropriate form, there is still good reason why, given the overwhelming factual situation before the Court, that interlocutory orders of the kind now made should issue, at least, if for no other reason, in order to allow the plaintiff, Provident, to regularise the pleadings. 19As discussed during the course of the proceedings, and prior to the making of orders, the terms of s 63 of the Supreme Court Act 1970 and the injunction in s 56 of the Civil Procedure Act 2005 warrant such an order. 20For those reasons, the Court, on 8 April 2011, made the following orders: (i) That the defendant, pending the hearing and determination of these proceedings, be restrained from entering Barry Station without the written consent of the plaintiff and, if so, and to the extent required by the plaintiff, on such terms as the plaintiff may impose . (ii) That, within 14 days of the date of this order, the defendant file and serve an affidavit in these proceedings in which he explains with precision: (a) what has become of the cattle which he removed from Barry Station; and (b) what has become of the trucks, plant and equipment and other items which he removed from Barry Station. ********** 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. Decision last updated: 18 April 2011