Bradley Hancock v Impresario Enterprises Pty Ltd (No 4) [2013] NSWSC 558

Supreme Court New South Wales

Medium Neutral Citation: Bradley Hancock v Impresario Enterprises Pty Ltd (No 4) [2013] NSWSC 558 Hearing dates: 22 April 2013 Decision date: 22 April 2013 Jurisdiction: Equity Division Before: Rein J Decision: Application to set aside orders made on 12 April 2013 dismissed. Catchwords: PROCEDURE AND PRACTICE - Notice of motion to set aside orders made ex parte following plaintiff's non appearance.

PROPERTY- Withdrawal of caveat by plaintiff in order for the bank to exercise its power of sale Category: Principal judgment Parties: Bradley Hancock (plaintiff) Impresario Enterprises Pty Ltd (first defendant) St George Bank - A Division of Westpac Banking Corporation (second defendant) Representation: Counsel: Plaintiff in person (via phone link) No appearance (first defendant) Mr Newton (second defendant) Solicitors: Kemp Strang (second defendant) File Number(s): 2011/33867

EX TEMPORE Judgment 1REIN J: These proceedings concern the sale of a property previously owned by the plaintiff and sold to the first defendant, over which the second defendant, St George Bank ("the bank"), obtained a mortgage from the first defendant in return for a loan. 2The background is described in a judgment of mine handed down ex tempore on 12 April 2013 which now has been put into written form and a copy has been provided this morning to counsel for the bank and will be despatched to Mr Hancock, who appears today by phone. 3On 12 April, I ordered the plaintiff to provide a withdrawal of caveat over the property to the bank for the bank to hold until settlement so as to permit settlement of a sale of the property to third party purchasers to proceed on 29 April 2013. 4The bank's notice of motion was returnable on 10 April 2013 before the Registrar, and it came before Registrar Musgrave. By that date the plaintiff had indicated to the bank's solicitor and to the Court, by the correspondence, that he opposed the matter proceeding before mid May, at which time he would be in Sydney. 5The bank's solicitors indicated by letter to the plaintiff that their client required an earlier hearing than that, and that they would consent to the plaintiff appearing by phone link, but they did not hear back from the plaintiff. 6On 10 April 2013 there was no phone link with the plaintiff and Registrar Musgrave fixed the matter for hearing before the Application's List Judge on Friday 12 April 2013. The matter came before me by arrangement with the Application's List Judge on that day. 7The plaintiff's explanation of his non-attendance on 10 April and 12 April is that he thought that he could appear by phone link and did not need to do anything to achieve that. He lives a long way from Sydney and has the care of his children and says that it is not convenient for him to attend Court. He disputes that his failure to respond to the bank's solicitors' invitation to appear by phone link meant that he did not wish to appear, or gave up his right to appear. 8The plaintiff should, in my view, have indicated to the bank's solicitors that he wished to appear by phone link in response to their letter, and again, when he received notice of the 12 April 2013 hearing date. 9In any event, having learnt of the orders made on 12 April 2013, the plaintiff has sought to have them set aside by notice of motion, and it has now being dealt with today, albeit within a narrower time frame than that which the plaintiff contends is appropriate. 10I am satisfied, as I was on 12 April 2013, that the matter is urgent and it is appropriate for it to be dealt with today, although I should indicate no formal application for an adjournment was sought by Mr Hancock, who is self represented. 11Mr Hancock has explained to me today why he opposes any money being paid to the bank. In essence, he appears to contend that his interest as owner of the property in fee simple trumps any rights of the bank as registered first mortgagee. Although he accepts that the bank lent the money to the first defendant without any knowledge of his claim, by reason of there being an unpaid portion of the agreed contract price for sale of the property between himself and the first defendant, and he asserts he still has an interest in the property which should have priority over the bank's mortgage debt. 12Mr Hancock also contends that he was not adequately informed about the intention of the bank to take possession, and the arrangements made for sale by auction. However, he does appear to have been advised in advance that the property would be sold by the bank at auction as he wrote warning the bank's solicitors that they must inform prospective purchasers of his interest, and that he would be monitoring the sale. He also apologised for his delay in contacting them: see the document at pages 41-42 of the affidavit of Mr Pong dated 28 March 2013. 13There appears to be no point taken as to the sale price achieved by the bank at auction. 14Mr Hancock also claims that the bank did not, in lending money to the first defendant, act prudently demonstrated he says, at least in part, by the fact that the first defendant went into default very soon after the loan was made by the bank to the first defendant. 15There are a number of factual assertions made by Mr Hancock which are not the subject of evidence from him. In any event, Mr Hancock's opposition to the sale, and his assertion that his interest is not defeated by the bank's registered first mortgage, is not supportable either as a general proposition and, even less so in the particular circumstances of this case, where orders have been made by consent by the plaintiff. The consent orders in the first case recognised that the bank was entitled to be paid out its debt out of the sale proceeds when those orders were originally made (see page 31 and 32 of Mr Pong's affidavit of 28 March). The original orders were made on 8 April 2011, and subsequently on 11 November 2011 when the proceedings were settled as between Mr Hancock and the first defendant a term of settlement was in the following terms, paragraph 5: That any sum received in excess of the sum paid to satisfy the current mortgage (St George Bank Limited), agent and solicitor's fees and disbursements on such sale be held in a joint account pending agreement or court as to distribution. 16Those terms of settlement were signed by counsel for Mr Hancock and for the first defendant. 17In my view, it is clear that by the orders made in April and then again in November 2011 but the defendants all accepted that the bank was to be paid its debt out the sale of proceeds. 18I should mention that this afternoon Mr Hancock has informed me that he did not consent to any orders made that were signed by his counsel. He asserts that those terms of settlement were entered into over his explicit instructions to the contrary. However, that is not a matter which can, in a contest between the bank and the plaintiff, concern the Court. At this stage they are assertions made by Mr Hancock, but even if established, the document has been signed on his behalf by a person with ostensible authority to enter into them on his behalf. 19In any event, they seem to reflect the normal legal position which is that a first registered mortgage without notice of someone's interest in a property is not affected by that interest. 20However, there are two protections to which Mr Hancock is entitled. The first is that he maintains a claim as against the first defendant. The existence of this claim appears to be recognised in paragraph 5 of the terms of settlement, which I read out earlier, because it envisages there being either possible agreement about the surplus, or that the surplus be paid into Court, presumably for subsequent argument. 21I am not sure what the first defendant's position is about that, but the safe course and the appropriate course is that any surplus proceeds be paid into Court and the bank today has given an undertaking that it will pay any surplus into Court: see Exhibit B. 22The second protection to the plaintiff is that, as between himself and the first defendant, it could be said that the caveat should stand until the monies due on settlement are to be handed over. That is to say that the withdrawal of caveat to be provided by him to the bank is to be held until settlement and handed over on settlement in return for the balance of sale proceeds from the third party purchasers. That is what was envisaged by the orders made by the court on 12 April 2013. 23The first and second undertakings having been given, and the orders being in the form in which they are, I am not persuaded that there is any basis for the sale to be delayed or for Mr Hancock to resist providing the withdrawal of caveat that he has been ordered to provide so that the withdrawal can be lodged by the purchasers on the settlement. 24Accordingly, I do not see it as appropriate to set aside the orders I made on 12 April 2013.