Belle Corp Equity Pty Limited v Defined Properties Investment Pty Limited [2017] NSWSC 453

Supreme Court New South Wales

Medium Neutral Citation: Belle Corp Equity Pty Limited v Defined Properties Investment Pty Limited [2017] NSWSC 453 Hearing dates: 12 April 2017 Date of orders: 12 April 2017 Decision date: 12 April 2017 Jurisdiction: Common Law Before: Campbell J Decision: I adjourn the hearing of this application until 20 April 2017 at 10am before me Catchwords: CIVIL PROCEDURE – writ of possession of lands ordered – stay on writ of possession ordered – whether stay on writ of possession to be dissolved – where defendant presents evidence of sale to satisfy the mortgagee's debt – where purchaser of sale of land is a de-registered company – held that dissolution of stay of writ of possession of lands refused Category: Procedural and other rulings Parties: Belle Corp Equity Pty Limited Defined Properties Investment Pty Limited Representation: Counsel: A. Rogers (Plaintiff) G. Dimitriou (by leave for Defined Properties Investment Pty ltd) File Number(s): 2016/00154403

EX TEMPORE Judgment (REVISED) 1. This is an application made by leave to dissolve a stay of a writ of possession of lands ordered by Rothman J on 24 March 2017. To put it simply, the basis upon which his Honour ordered the stay was that he was satisfied there was evidence of an advantageous sale of the security property which would more than recoup the mortgagee's debt. 2. The plaintiff has, as is usual, sought evidence to satisfy itself that the sale is genuine and that it can have confidence it will take place as the defendant has represented. The plaintiff has turned up matters which I think justify a certain sense of unease about whether the sale is in fact capable of proceeding as Mr Dimitriou, who is the guiding hand and mind of the company, says it will. These matters are not so clear as to persuade me that I should act today to dissolve the stay. 3. I have also raised with Mr Rogers of counsel and with Mr Dimitriou during the course of argument about the matter the practical consideration that it may be that an appointment for eviction cannot be obtained soon from the sheriff whose office, as I understand it, is very busy with matters of this kind. 4. The fundamental concern I think is that the purchasing company remains deregistered three weeks after Mr Dimitriou assured Rothman J that everything necessary to obtain re-registration was in order. The evidence he has presented to me today to demonstrate that steps have been taken to have the company re-registered doesn't allow me to decide on the basis of objective material that the application has in fact been lodged. The document I have seen doesn't bear any stamp from ASIC, nor is there any receipt for the payment of any fee which I infer must be payable on an application for the re-registration of a corporation. 5. Those matters, I think, are the primary concern that the plaintiff has about whether it can be confident that Mr Dimitriou can complete the so-called sale on or before 9 May. Clearly, it is trite law that a contract with a non-existent legal entity is no contract at all, although if re-registered the company will be able to ratify the contract that apparently has been entered into by its principal director, a Mr Nuttall. 6. Notwithstanding the persuasive argument put forward by Mr Rogers, for the pragmatic reasons I have expressed, I think that I should give Mr Dimitriou an opportunity to do what he says will be done, which is to prove that the company is re-registered. He is telling me today that his expectation is it will happen overnight. Well, there is nothing I have seen to make me confident that will occur. 7. He has also said today that he is prepared to resume regular payments to the mortgagee between now and settlement: (a) to reduce to some extent the interest bill, and (b), I think as a pledge of his good faith. 8. On that indication, I am prepared to adjourn this matter for further mention before me on Thursday 20 April 2017 at 10am, on which occasion Mr Dimitriou can present evidence that the purchaser company has in fact by then been re-registered and can provide proof of payment of an amount of the mortgagee. 9. The amount he has suggested today from the bar table is $5,000. I am not able to say whether that covers an interest instalment or not, but my expectation is that the agreement will be that an amount will be paid on a weekly basis between now and 9 May to reduce the amount of the interest. 10. The parties will know what the monthly interest bill formerly was. I acknowledge there will be a default rate of interest at this time. I am not proposing to make any orders today, but I will give a clear indication that, unless clear evidence of re-registration of the company is provided at or before 10am on 20 April 2017, and there is evidence of payment of $5,000 in reduction of the debt by that time, I am presently of the view that I should dissolve the stay. 11. The only order I propose to make is that I adjourn the hearing of this application until 20 April 2017 at 10am before me.