Bank of Western Australia Limited v Jason David Callipari& Anor [2011] NSWSC 145 (10 March 2011)

Last Updated: 14 April 2011

Supreme Court New South Wales

Case Title:	Bank of Western Australia Limited v Jason David Callipari & Anor
Medium Neutral Citation:	[2011] NSWSC 145
Hearing Date(s):	7, 9 and 10 March 2011
Decision Date:	10 March 2011
Jurisdiction:
Before:	Garling J
Decision:	Judgment for the plaintiff.
Catchwords:	GUARANTEES & INDEMNITIES - Personal guarantee on company loan - Company guarantee on home loan - Security by way of mortgages over property in NSW and Victoria - Default on payment of interest and principal - Failure of defendants to file a defence or any evidence in support in compliance with court orders - Defendants unable to explain any proper basis for a defence.
Legislation Cited:	Civil Procedure Act 2005
Cases Cited:	Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589
Texts Cited:
Category:	Principal judgment
Parties:	Bank of Western Australia Limited (P) Jason David Callipari (D1) J. Callipari Property Group Pty Ltd (D2)
Representation
- Counsel:	Counsel: M.A. Jones (P) R. Mitchell (D1 & D2)
- Solicitors:	Solicitors: Corrs Chambers Westgarth (P) Eggleston Mitchell (D1 & D2)
File number(s):	2010/076426
Publication Restriction:

Judgment

1. In August 2007, Jason Callipari borrowed about $630,000 from the Bank of Western Australia Limited under a Home Loan Facility.
   
2. A company of which he was the sole director and shareholder, J. Callipari Property Group Pty Ltd, borrowed about $2.5M on a Business Loan Facility from the Bank.
   
3. The Home Loan was secured by a company guarantee which was itself secured by a mortgage over company property both in NSW and Victoria. The Company's loan was secured by the same mortgages, and also by a guarantee from Mr Callipari. Mr Callipari's guarantee was secured by mortgages over his property in NSW and Victoria.
   
4. Both loans went into default during 2008.
   
5. The Bank now claims judgment for possession of each of the secured properties and for a monetary sum of an amount over $3.2M.
   
6. The proceedings were listed by the Court for final hearing on 7 March 2011.
   
7. For the reasons set out below, I have decided that the Bank is entitled to the orders which it seeks.
   

Procedural Background

8. Proceedings were commenced against Mr Callipari in August 2009 and against the Company in March 2010.
   
9. On 9 July 2010, a defence was filed in each proceeding.
   
10. On 27 August 2010, the Bank obtained a hearing date of 24 September 2010 for its motion for summary judgment. On that day Registrar Bradford, by consent, ordered Mr Callipari and the Company to file and serve all affidavits upon which they intended to rely in defence of the claim by 10 September 2010.
    
11. The matter came on for hearing before Rothman J on 24 September 2010. His Honour did not hear or decide the Bank's motion for summary judgment. Rather, he made some directions which took account of the issues with which he was presented.
    
12. His Honour consolidated the two sets of proceedings and ordered the Bank to file an amended statement of claim.
    
13. Mr Callipari and the Company were ordered to file an amended defence to that claim by 30 September 2010.
    
14. After the hearing before Rothman J, there was some suggestion that the proceedings would be transferred to the Supreme Court of Victoria and a motion to that effect was filed by Mr Callipari on 11 October 2010. The Bank again filed a motion for summary judgment. Both motions came before Kirby J on 17 December 2010.
    
15. Both motions, one to transfer the proceedings to the Supreme Court of Victoria and the other for summary judgment, were dismissed by his Honour. He fixed the whole proceedings with the consent of both parties for an expedited final hearing on 7 March 2011.
    
16. His Honour ordered that Mr Callipari and the Company file and serve a sworn defence to the Bank's amended statement of claim on or before 31 January 2011. He also ordered that they file and serve by that date any affidavits upon which they intended to rely at the final hearing.
    
17. Kirby J in making those orders made it plain to the solicitor for Mr Callipari and the Company that he intended that, by giving them to the end of January 2011 to file their defence and the affidavits in support of that defence, he was giving them "... a final opportunity ... the axe is about to descend ... to articulate the defence ...".
    
18. On 3 March 2011, the matter came before Latham J. Mr Callipari and the Company made an application for an adjournment of the final hearing, but did so without seeking to file a notice of motion or any affidavit in support as evidence of any basis for an adjournment. Her Honour declined to grant the adjournment but indicated that Mr Callipari and the Company were free to renew the application when the matter was listed for hearing on 7 March 2011.
    
19. At the commencement of the proceedings on 7 March 2011, Mr Callipari appeared in person for himself and sought leave to appear for the Company.
    
20. He applied for an adjournment. He provided no affidavit in support of that application, nor did he provide any sworn evidence to support it. That application was refused.
    
21. The Bank then read and tendered the evidence upon which it relied for the orders which it sought. At the conclusion of that evidence, which was admitted largely without objection, Mr Callipari again sought a further adjournment.
    
22. In the circumstances which then existed I adjourned the proceedings until 10am on Wednesday, 9 March 2011 and made orders requiring Mr Callipari to file a defence and any evidence upon which he relied by 5pm on Tuesday, 8 March 2011.
    
23. On 8 March 2011, Mr Callipari filed an affidavit. He did not file a defence.
    

The Claim of Bank of Western Australia Limited

24. I am satisfied on the balance of probabilities of the following facts, matters and circumstances.
    
25. Mr Callipari and the Company owned a series of properties which were in the general area of, and surrounding Mildura in Victoria. Some of the properties were in NSW, but most were in Victoria.
    
26. The properties were of various kinds and had various usages, including:
    
    • (1) Mr Callipari's principal place of residence;
      

(b) the workshops at which he undertook repairs of motor vehicles and other engineering works;

(c) rural land upon which grapes were grown;

(d) vacant rural land;

(e) industrial buildings including factory/warehouse type premises; and

(f) residential investment properties.

27. Mr Callipari was no neophyte in the business of property investment.
    
28. On 9 August 2007, Mr Callipari entered into a BankWest Life Plus Home Loan which resulted on 22 August 2007 in an advance of $637,600 by the Bank to Mr Callipari.
    
29. On 9 August 2007, the Company accepted an offer as a consequence of which the Bank provided financial accommodation in the form of a "Business Edge Facility" to a limit of $2,562,400. On 22 August 2007, the Bank advanced $2,548,870.50 to the Company pursuant to the Business Loan Agreement.
    
30. Under the Home Loan Agreement, Mr Callipari was obliged to pay principal and interest in a timely fashion for the period of 30 years fixed by the loan agreement. In the event of default, including the failure to pay either principal or interest, the Bank was entitled to demand immediate payment of all amounts owing under the Home Loan Agreement.
    
31. The Business Loan Agreement, which was an interest only agreement, established a loan facility for a period of 5 years and obliged the Company to pay the interest payments on time. A further term of that facility was that the Company was not to exceed the facility limit of $2,562,400.
    
32. The Company entered into a guarantee and indemnity in favour of the Bank with respect to the Home Loan Agreement and granted a mortgage over land in both Victoria and NSW to support such guarantee.
    
33. The mortgages to which I have just referred also formed part of the security for the Company's borrowings. As well, Mr Callipari gave a personal guarantee and indemnity in favour of the Bank. In support of his personal guarantee, Mr Callipari granted a mortgage over lands in both NSW and Victoria of which he was the registered proprietor.
    
34. The loan account statements provided by the Bank with respect to the Business Loan account demonstrate that the loan was first disbursed on 22 August 2007 in accordance with the Company's directions. It also demonstrates that the first two interest payments in September and October 2007, whilst they were made, were dishonoured by the paying bank. The dishonour continued in December 2007 and January 2008. No interest payments were made in February, March, April or May 2008.
    
35. In June 2008, a net sum of $161,300 was deposited to the credit of the account which had the result of bringing the arrears of the account up to date and permitting a sum of about $43,000 to be applied in reduction of the principal which was owing. The authority for this application of funds was contested before me, but I am satisfied that this application of funds accorded with what was agreed between Mr Callipari and the Bank.
    
36. After June 2008, no payments were made of any kind whatsoever by Mr Callipari or the Company on the Business Loan.
    
37. As at 25 September 2010, the amount owing to the Bank on the Business Loan was $3,066,583.15.
    
38. The Home Loan statement put into evidence by the Bank demonstrates that the Home Loan was first advanced in August 2007. Payments of interest and principal commenced to be made in September 2007. The October 2007 payment of principal and interest was dishonoured, as was the payment made in December 2007, January 2008 and February 2008. No payment was made after February 2008 until 11 June 2008 when a sum of $35,000 was paid which had the effect of bringing the account back into order.
    
39. Two further payments of principal and interest were due in June and July 2008. The only payment made with respect to those was the sum of $5,000 on 28 July 2008 which was inadequate to pay for those two monthly accruals. Thereafter, no further payment has been received by the Bank on the Home Loan account.
    
40. As at 25 September 2010, the amount owing to the Bank on the Home Loan was $732,373.07.
    
41. On 27 October 2008, Eggleston Mitchell, lawyers of Melbourne, wrote to the Bank's lawyers in Sydney and informed the Bank on behalf of both Mr Callipari and the Company that " Our client has stopped making repayments on the loan, not because he is in financial difficulties, but because he has lost confidence in the personnel at the Bank ".
    
42. Self -evidently, this excuse is not a proper basis for non -payment of the financial obligations.
    
43. That letter is also of importance because it indicated that both Mr Callipari and the Company were under no misapprehension about the fact that their loans were in default and that the Bank was undertaking enforcement action. The letter contained these paragraphs:
    

"Our client has been discussing the present facility with the Commonwealth Bank and a meeting has been arranged for today. Our client has had a long association with the Commonwealth Bank in Mildura and is confident that the Bank will agree to refinance the present facility.

...

We ask at this stage that your client agree to hold further action pending the outcome of our client's discussions with the Commonwealth Bank for a period of 7 days."

44. On 14 November 2008, Eggelston Mitchell again wrote to the Bank's Sydney lawyers. That letter acknowledges that their client, Mr Callipari, was in receipt of both a Notice of Default and a Demand for Repayment with respect to both of the two outstanding facilities with the Bank.
    
45. The letter includes the following:
    

"... Our client indicated to the Bank that he was expecting a refund of GST payments of approximately $70,000 to $80,000 and that his accountant had recently lodged all the necessary documentation with the Taxation Department and he was expecting receipt of those funds shortly. He indicated to the bank manager that upon receipt of the funds he would pay it directly into the account.

Our client has indicated to us that he will maintain payments on the accounts for the next two months and hopefully by that time the Commonwealth Bank will have assumed control of the file. Our client will seek a full investigation once the file is transferred to the Commonwealth Bank."

46. Despite the promise to deposit the GST refund, and to make future monthly payments, neither Mr Callipari, nor the Company, adhered to their word. These payments were not made.
    
47. In 2009, and in the absence of any further payments on the account, the Bank proceeded to commence proceedings and have them personally served.
    
48. It contained this paragraph:
    

"We are instructed that our client would be prepared to undertake an orderly disposition of selected properties, within an appropriate period of time, providing [the Bank] was prepared to refrain from taking further action in respect of the loan security properties."

49. Negotiations ensued for some time thereafter with respect to a plan for the disposition of the secured properties, and the Bank refraining from enforcement proceedings.
    
50. However, by 4 May 2010, it became clear that the steps which had been taken by Mr Callipari and the Company were unacceptable to the Bank and that the Bank proposed to proceed with enforcement proceedings.
    
51. On 17 June 2010, Eggelston Mitchell wrote to the Bank's Sydney lawyers in these terms:
    

"As indicated in our previous correspondence, if your client was not prepared to accept a proposal from our client we have instructions to file a Defence [to] the NSW and the Victorian proceedings. We would be pleased if you could allow our client a further seven days to settle the dispute without the need for costly litigation. If at the end of the seven days a settlement cannot be reached between the parties our client will file a Defence in each of the proceedings."

52. Nothing further happened until July 2010 when defences to the original two statements of claim in NSW were filed.
    
53. Those defences seemed to have these features:
    

(a) Mr Callipari and the Company admit entering into the various transaction documents and admit receiving loans from the Company;

(b) A denial of default under the loan agreement and an allegation that the financial accommodation was not provided as was agreed;

(c) No admissions are made by the defendants to various of the matters pleaded.

54. The Bank submitted that the defences were properly summarised in this way:
    

"... it once again appears to be the intention of the defendant to admit entering into the various transaction documents, and admit the relevant terms of those transaction documents, denied that he received financial accommodation 'as agreed', and makes a bare denial of the allegations of loan default and the natural consequences of it."

55. This to my mind is a fair summary of the defence then advanced by Mr Callipari and the Company.
    
56. No cross -claim was filed against the Bank claiming damages for breach of any agreement, or seeking equitable relief.
    
57. However, in the course of interlocutory proceedings, Rothman J, as I have indicated above, consolidated the two sets of proceedings in NSW and ordered that an amended statement of claim be filed. This was done by the Bank. The amended statement of claim also included claims to possession of properties in Victoria, which had been the subject of (now -discontinued) proceedings in the Supreme Court of Victoria.
    
58. Notwithstanding three separate orders of the Court, there has been no defence filed to that amended statement of claim.
    

Evidence and Submissions of Mr Callipari

59. Prior to the late afternoon of 8 March 2011, Mr Callipari did not file any evidence, nor did he enter the witness box to give any evidence orally, and be subject to cross -examination.
    
60. On 7 March 2011, I permitted Mr Callipari to proffer such explanation as he wished from the Bar table, despite an objection to this course from counsel for the Bank.
    
61. On 7 March 2011, Mr Callipari seemed to assert:
    

(a) that notwithstanding what the Bank's loan accounts showed, he had not received the moneys which were said to have been advanced;

(b) that the Bank had not properly accounted for the receipt by it of $196,000 in June 2008, which was the balance of proceeds from the sale of water licences by the Company;

(c) that the Bank had inappropriately charged interest at the default rate, with the consequence that the loans were wrongly regarded as being in default when, in truth, they were not;

(d) the Bank had failed to send him copies of the account statements; and

(e) at some unidentified point in time, which seemed to be about June 2008, when the bank received the payment of $196,000, he had received conflicting information from two bank officers as to whether his accounts were in order, or else substantially in arrears.

62. The evidence of the Bank and my findings with respect to each of these matters are as follows:
    

(a) The Bank loan statements are contemporaneous records of the Bank's financial and accounting systems. They are designed to correctly record, as part of a system of continuous recording, the passage of money through the Bank's accounts. There is no basis in the evidence to suggest that their recording was inaccurate. As well, the original defences filed for Mr Callipari and the Company admitted that the moneys had been received. I do not accept this argument advanced by Mr Callipari.

(b) The agreement for the sale of the water entitlements was entered into by the Company on 18 March 2008. The consideration was $491,250. The Bank had a Deed of Charge over the entitlement. It agreed to release that charge to enable:

(i) payment of $260,000 to Nationwide Capital Pty Ltd for an accumulated debt;

(ii) payment of the net balance to the Bank.

(c) The sale settled in May 2008. The Bank received a total of $196,300 which it allocated as follows:

(i) $35,000 to bring the payments of principal and interest on the Home Loan up to date, thereby clearing the arrears on that account;

(ii) $68,400 to bring the payment of interest on the Business Loan up to date, also clearing the arrears on that account; and

(iii) The remainder was utilised to reduce the amount drawn down on the Business Loan facility.

The disbursement of funds in this way was specifically discussed with Mr Callipari by Mr Wayne Robins, an officer of the Bank, on 15 May 2008 during a telephone conversation. Mr Callipari agreed to this course. That the funds were disbursed in this way was confirmed by an email of 11 August 2008 from Mr Robins to Mr Callipari.

A copy of that email, and the contemporaneous note of the telephone conversation, were provided to Eggleston Mitchell by letter from the Bank's lawyers on 28 September 2010.

There is no room to doubt what happened, how the funds were applied, and that Mr Callipari consented to that course. He has no basis for any complaint about these matters. These facts do not constitute any defence to the Bank's claim.

(c) According to the requisite account statements, default interest has accrued when the accounts have been in default. Mr Callipari's argument seems largely to be based on either the misallocation of the funds from the sale of the water entitlements, which I have found did not occur, or else on some general statement by an officer of the Bank that his accounts were in order. Neither of these provides any basis for a defence to the claim.

(d) Mr Callipari claims that the Bank had failed to send him account statements. Even if this was true, it does not provide any defence to the Bank's claims. There is no doubt that Mr Callipari knew that the loans were in default, after all, he had made no payments after June 2008 to address the monthly obligations. The letter of his solicitors of 27 October 2008 makes Mr Callipari's position quite clear. He knew the loans were in default and intentionally ceased making payments on them. Whether he had account statements or not was quite irrelevant.

(e) The assertion by Mr Callipari that he was excused in some way from making repayments on the two loans because he had received conflicting information about the status of his loans is a nonsense. It is conceivable that, in the absence of clarification of his position, such an explanation may be sufficient for non -payment of one month's obligations or perhaps two. But the explanation is wholly inadequate, even if correct, to warrant the complete failure of Mr Callipari and the Company to make any payments at all.

63. It can be seen that none of the matters raised by Mr Callipari can possibly constitute any defence to the Bank's claim.
    

The Affidavit of Mr Callipari of 8 March 2011

64. The affidavit of Mr Callipari of 8 March 2011 was in the most general of terms. It raised some "concerns" of Mr Callipari, which were:
    

(a) The Bank was, because of its failure to advance the monies in a timely fashion, liable for the increase in the debt which Mr Callipari (or the Company, it is not clear which) owed to the previous financiers of Mr Callipari, namely Nationwide Capital and Banksia Securities;

(b) The solicitors for the Bank entered into a second mortgage facility with Nationwide Capital on behalf of Mr Callipari, and without his authority. This, it was said, had the effect of requiring Mr Callipari to fund a shortfall of monies to be repaid to Nationwide Capital which did not otherwise exist;

(c) Mr Callipari asserts that he paid $233,000 to the Bank, and not $196,000. He further asserts that the bank was not authorised to credit any of the monies against the outstanding capital of the Business Loan, but the monies were properly to be regarded as a prepayment of interest, once arrears had been accounted for;

(d) He again asserted that he had not received various statements of account as his loan agreement said that he would; and

(e) He alleges that he had not been served with any demand in relation to his guarantee.

65. He finally concludes his affidavit with this paragraph:
    

"I am informed by my solicitor and verily believe that I have a good Defence to the proceedings and further that I have a valid Counterclaim."

66. Ultimately however, on the morning of 10 March 2011, Mr Mitchell announced to the Court that having had the benefit of advice from senior counsel, Mr Callipari:
    

(a) accepted that he had no defence to the Bank's claim and did not propose to file any defence; and

(b) would not oppose the orders which the Bank was seeking. He did not consent to them.

67. He also informed the Court that it was his client's wish to bring a cross -claim against the Bank.
    

Discernment

68. The Bank has established with evidence that might be described as overwhelming, that it has made loans to Mr Callipari and the Company and that there has been default on those loans. It has also established that the requisite steps have been taken to enable it to obtain judgment.
    
69. The evidence establishes that the refusal to pay either interest with respect to the Business Loan, or else principal and interest with respect to the Home Loan, was a deliberate one made by Mr Callipari and the Company for no good reason.
    
70. In submissions to the Court, but not in evidence, Mr Callipari complains that in some quite unspecified way, the conduct of the Bank was inappropriate and has given rise to some reason why he does not have to repay his financial obligations.
    
71. The submissions which were ultimately abandoned must be rejected. The simple fact of the matter is that Mr Callipari and the Company have not paid their debts as and when they have fallen due. This was their choice. There are no circumstances available as a defence with respect to the failure. I make no comment nor finding as to whether those circumstances may give rise to any cross -claim.
    
72. This Court has on a number of occasions extended every consideration to Mr Callipari and the Company to provide a proper defence to the claims and evidence in support of that defence. There have been three orders to file a defence. These have not been complied with. There have been three orders to file affidavits and evidence upon which the defendants wish to rely. These have not been complied with.
    
73. The only inference which is available to be drawn, and which I draw, from the proved facts, the late acknowledgement by Mr Callipari that he did not advance any defence against the Bank's claim, and from the inability or else considered decision not to respond to the claim by a properly drawn defence and with evidence, is that in truth Mr Callipari and the Company have no defence.
    

Commercial Nature of the Proceedings

74. It is clear that proceedings of this kind are commercial in nature. The accumulation of interest on the loan represented a significant ongoing liability for Mr Callipari and the Company, and one which continues to accrue whilst ever the proceedings are on foot. It is inevitable that the available equity in the properties will decline because of the accrual of interest. This does not advantage either the lender (here the Bank) or the borrower (here Mr Callipari and the Company).
    
75. Section 56 of the Civil Procedure Act 2005 provides that the Court has an obligation to give effect to the overriding purpose set out in that section, namely, "... to facilitate the just, quick and cheap resolution of the real issues in the proceedings ".
    
76. Parties are obliged to assist the Court to further the overriding purpose by, amongst other things, complying with directions and orders of the Court. Solicitors and barristers must not do anything which causes the party for whom they act to be in breach of the requisite duty: s 56(3) of the Civil Procedure Act .
    
77. This case, in so far as Mr Callipari and the Company are concerned, is not an example of compliance with s 56 of the Civil Procedure Act . On the contrary, it is an example of the very thing which s 56 of the Civil Procedure Act is designed to prevent.
    
78. In this case, the result of the failure by Mr Callipari, the Company and the lawyers who were retained for those parties to address the real issues in the proceedings is that the obtaining of judgment by the Bank has been much delayed, and to nobody's benefit.
    
79. The Bank is entitled to the entirety of the judgment which it claims.
    

Orders

(1) Judgment for the plaintiff against each of the defendants in the sum of $4,096,216.66.

(2) The defendants to pay to the plaintiff interest on the judgment sum as follows:

(a) as to $3,310,888.98, calculated pursuant to clause 11.4(b) of the Business Edge Loan agreement dated 9 August 2007 between the plaintiff and the second defendant (incorporating the Facility Terms and the General Terms) from 10 March 2011;

(b) as to $755,564.97, calculated pursuant to clause A.21.3 of the Home Loan agreement dated 9 August 2007 between the plaintiff and the first defendant (incorporating the General Terms) from 10 March 2011;

(c) as to $29,762.71, calculated pursuant to s 101 of the Uniform Civil Procedure Act 2005 at the prescribed rate.

(3) An order for possession by the plaintiff as against the first defendant of the following properties:

(a) Lot 1 in Deposited Plan 543568, known as Lot 1 Sturt Highway, Buronga, New South Wales 2739;

(b) Lot 2 in Deposited Plan 543568, known as Lot 2 Sturt Highway, Buronga, New South Wales 2739;

(c) Lot 1 in Strata Plan 46103, known as Unit 1, 56 William Street, Gol Gol, New South Wales 2738;

(d) Lot 2 in Strata Plan 46103, known as Unit 2, 56 William Street, Gol Gol, New South Wales 2738;

(e) Lot 3 in Strata Plan 46103, known as Unit 3, 56 William Street Gol Gol, New South Wales 2738;

(f) Lot 4 in Strata Plan 46103, known as Unit 4, 56 William Street, Gol Gol, New South Wales 2738;

(g) Lot 1 in Strata Plan 46104, known as Unit 1, 58 William Street Gol Gol, New South Wales 2738;

(h) Lot 2 in Strata Plan 46104, known as Unit 2, 58 William Street Gol Gol, New South Wales 2738;

(i) Lot 3 in Strata Plan 46104, known as Unit 3, 58 William Street Gol Gol, New South Wales 2738;

(j) Lot 4 in Strata Plan 46104, known as Unit 4, 58 William Street Gol Gol, New South Wales 2738;

(4) An order for possession by the plaintiff as against the first defendant of the following properties:

(a) Certificate of Title Volume 9987 Folio 377, known as Unit 1, 29 -31 Seventh Street, East Mildura, Victoria 3500; and

(b) Certificate of Title Volume 9804 Folio 715, known as 33 Seventh Street, East Mildura, Victoria 3500,

(5) An order for possession by the plaintiff as against the second defendant of the following properties:

(a) Certificate of Title Volume 09776 of Folio 664 being the land situated at and known as 346 Walnut Avenue, Mildura, Victoria, 3500;

(b) Certificate of Title Volume 9593 of Folio 463 being the land situated at and known as Lot 2 Cureton Avenue, Mildura, Victoria, 3500;

(c) Certificate of Title Volume 9983 of Folio 505 being the land situated at and known as 162A Eighth Street, Mildura, Victoria, 3500;

(d) Certificate of Title Volume 07901 of Folio 047 being the land situated at and known as Lot CA 195A Little Cowra Road, Yelta, Victoria, 3505;

(e) Certificate of Title Volume 08821 of Folio 951 being the land situated at Lot CA 197 Little Cowra Road, Yelta, Victoria, 3505;

(f) Certificate of Title Volume 10090 of Folio 103 being the land situated at and known as Lot 2 Little Cowra Road, Yelta, Victoria, 3505;

(g) Certificate of Title Volume 09072 of Folio 038 being the land situated at and known as Lot 1 First Street, Yelta, Victoria, 3505; and

(h) Certificate of Title Volume 10672 of Folio 995 being the land situated at and known as Lot 2 First Street, Yelta, Victoria, 3505.

(6) An order for possession by the plaintiff as against the second defendant of the following properties:

(a) Certificate of Title Volume 10966 of Folio 118 being the land situated at and known as Lot 2 Irymple Avenue, Nichols Point, Victoria, 3501;

(b) Certificate of Title Volume 10966 of Folio 119 being the land situated at and known as Lot 3 Irymple Avenue, Nichols Point, Victoria, 3501.

(7) An order for possession by the plaintiff as against the second defendant of the property described in Certificate of Title 14/740929 being 14 Alfred Elms Road, Trentham Cliffs, New South Wales, 2738.

(8) The plaintiff be granted leave to issue writs of possession in respect of the properties listed in Order (3) and (7) above forthwith.

(9) The defendants to pay the plaintiff's costs on an indemnity basis.

(10) The court notes the undertaking given by the plaintiff, through its counsel, to the Court that in respect of any proceedings the defendants may hereafter commence against the plaintiff, the plaintiff will not seek to raise by way of defence to such proceedings any estoppel arising from these proceedings including that based upon the principles in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589, except in respect of any issue on the claim of the plaintiff determined by this judgment.

(11) The Court notes the undertaking given by the plaintiff through its counsel to the Court that it will not take any steps to enforce the order for possession set forth in order (6) for a period of 28 days from today.

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