Capital Securities Mortgages Pty Ltd v Events By Lush Pty Ltd

1. [1]

   These proceedings were commenced by the Plaintiff, Capital Securities Mortgages Pty Ltd, against the Defendants on 30 October 2025. The Second and Third Defendants are directors of the First Defendant, along with Ms Clare Perry (also known as Clare Kennedy). Ms Clare Perry appeared by leave for the First Defendant in these proceedings. The Second and Third Defendants were self-represented. The Third Defendant is the son of the Second Defendant and the husband of Ms Clare Perry.

The claim

1. [2]

   The Plaintiff seeks relief against the First Defendant for possession of land at Rosemeadow (Rosemeadow Property), as well as an order for leave to issue a writ of possession concerning that land. As against the Second and Third Defendants, the Plaintiff seeks judgment for possession of a different parcel of land at Ambarvale (Ambarvale Property), as well as leave to issue a writ of possession in relation to that land.

2. [3]

   The First Defendant owns the Rosemeadow Property. The Second and Third Defendants own the Ambarvale Property as tenants in common in equal shares.

3. [4]

   The claim relates to a Loan, Security and Guarantee Deed dated 1 May 2025 (the Deed) under which the Plaintiff advanced to the First Defendant the sum of $1,555,000 (the Loan).

4. [5]

   Paragraph 6 of the Statement of Claim pleads that, pursuant to the Deed, the Defendants agreed to a number of terms concerning the repayment of all advances outstanding as at the Termination Date, which is pleaded as being on whichever date that was the earlier of the termination of the Facility by the Plaintiff or 12 months from the date of the Initial Advance (as those terms are defined in the Statement of Claim). There are further terms pleaded in relation to interest payable and other terms common in such documents.

5. [6]

   The Second and Third Defendants executed the Deed as guarantors. It is pleaded that, in that capacity, they agreed to guarantee the obligations and performance of the First Defendant thereunder.

6. [7]

   Two mortgages were granted to secure the Loan. One was granted by the First Defendant over the Rosemeadow Property. The second mortgage was granted by the Second and Third Defendants over the Ambarvale Property.

7. [8]

   Paragraph 14 of the Statement of Claim contends that the First Defendant failed to pay interest in advance on the first day of each calendar month at the applicable interest rate, commercial line fees at the rate of 0.1% per month, and default administration fees. These defaults caused a letter to be sent to the First Defendant on or about 15 August 2025. The letter demanded payment of $111,326.04 pursuant to the Deed. A similar demand was also made against the Second and Third Defendants on the same date pursuant to the guarantee. On that date, the Plaintiff also issued a s 57(2)(b) notice under the Real Property Act 1900 (NSW) in respect of the Rosemeadow Property and Ambarvale Property.

8. [9]

   The Plaintiff pleads that the failure by the Defendants to pay the monies alleged to be due and payable, “individually, jointly or in combination” constitute Events of Default such that, on or about 24 September 2025, the Plaintiff’s solicitor, by letter, informed the First Defendant that it had cancelled the Facility, terminated the Deed and demanded payment of the sum of $1,725,622.90. A cognate demand was also made upon the Second and Third Defendants as guarantors for the same sum.

9. [10]

   On or about 24 September 2025, the Plaintiff gave the First Defendant a further s 57(2)(b) notice in relation to the Rosemeadow Property and gave such a notice to each of the Second and Third Defendants in relation to the Ambarvale Property.

10. [11]

    The monies loaned by the Plaintiff have not been repaid which, the Plaintiff pleads, entitles it to enforce the two mortgages.

Procedural history

1. [12]

   No Defence was filed by any of the Defendants within 28 days of the purported service of the Statement of Claim upon them. On 11 December 2025 (with orders entered on 12 December 2025), the Plaintiff obtained default judgment against the First Defendant for possession of the Rosemeadow Property.

2. [13]

   The matter first came before Slattery J, sitting as Equity Duty Judge, on 18 December 2025. The Defendants filed a motion on that date relevantly seeking the following relief:

3. [14]

   On that occasion his Honour made the following orders:

4. [15]

   The motion referred to in Order 1 was never filed.

5. [16]

   On 27 February 2026, the Common Law Registrar listed the matter for directions before me on 18 March 2026 and, by consent, extended the stay imposed by Slattery J until 5pm on 18 March 2026.

6. [17]

   At the directions hearing on 18 March 2026, Ms Clare Perry sought leave to represent the First Defendant. I allowed her to do so but made it clear that the Second and Third Defendants had to appear either on their own behalf or by a solicitor: Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 7.1(1). I informed the parties that the motion to set aside the default judgment had not been filed and there was no such application before the Court. Moreover, the Second and Third Defendants still had not filed a Defence and remained in default. At the hearing, the Plaintiff applied for default judgment against the Second and Third Defendants, as well as leave to issue writs of possession against all three Defendants.

7. [18]

   For reasons given on that occasion, I made the following orders:

8. [19]

   As these orders made clear, it was necessary for the First Defendant to file by midday on Monday 23 March 2026 its Notice of Motion seeking to set aside the default judgment. Also by midday on Monday 23 March 2026, the Second and Third Defendants were to file and serve on the Plaintiff each of their Defences.

9. [20]

   On or about 25 March 2026, Ms Perry gave birth. It appears there were complications and the neonate remains in special care. On the morning of Sunday 22 March 2026, after her admission to hospital, Ms Perry applied by email to my chambers to extend the time for compliance with the orders made on 18 March 2026. At midday (with orders entered the following day) I made orders relevantly as follows:

10. [21]

    Orders 2 and 3 were complied with. The Third Defendant filed his Defence in compliance with Order 4. The Second Defendant filed no Defence. Consistent with the 18 March 2026 orders, on 27 March 2026 I entered default judgment against the Second Defendant as follows:

11. [22]

    On 31 March 2026, the First Defendant attempted to file a motion seeking to set aside the default judgment against it and also attempted to file a motion on behalf of the Second Defendant to set aside the default judgment against her, in each case without leave to do so.

12. [23]

    On 2 April 2026, the Defendants attempted to apply for a fee waiver from the Registry in respect of the filing fees associated with those motions.

This Application

1. [24]

   When the matter came before the Court on 13 April 2026, the First and Second Defendants were required to seek the Court’s leave to file two Notices of Motion, namely:

   1. (1)

      the First Defendant’s Notice of Motion to set aside the default judgment entered against it on 12 December 2025 (and ancillary orders); and

   2. (2)

      the Second Defendant’s Notice of Motion to set aside the default judgment entered against her on 27 March 2026 (and ancillary orders).

2. [25]

   In support of the application for leave, Ms Clare Perry, who also sought leave to appear for the Second Defendant, read four affidavits in relation to the Application and the two motions, namely:

   1. (1)

      the affidavit of Clare Margaret Perry sworn on 16 March 2026;

   2. (2)

      the affidavit of Christine Anne Perry sworn on 26 March 2026;

   3. (3)

      the affidavit of Christine Anne Perry sworn on 30 March 2026; and

   4. (4)

      the affidavit of Ian Robert Perry Sworn on 17 December 2025.

3. [26]

   The application for leave was not opposed by the Plaintiff. Shortly stated, the First and Seconds Defendants relied on a combination of factors including the medical circumstances surrounding the birth of Ms Clare Perry’s child, difficulties in attempting to file documents through the Court’s “Lawlink” portal, the absence of funds to pay the necessary filing fees, and the significant health issues caused by the Second Defendant’s age. The Second Defendant deposed that these issues have impacted her ability to independently manage her affairs, including these proceedings.

4. [27]

   Although it is important for parties to faithfully comply with orders made by the Court, I am satisfied that the Defendants here have sought to do so and have not acted with any contumacious disregard for the Court’s orders. Accordingly, I granted leave to the First and Second Defendants to file their respective motions in Court and have made a recommendation to the Registry to waive filing fees in relation to them. Accordingly, those motions are before the Court.

5. [28]

   The Plaintiff opposes the First and Second Defendants’ applications. It also seeks, albeit without a Notice of Motion before the Court, an order that the Defence filed by the Third Defendant be struck out and judgment for possession be entered against him.

6. [29]

   It is necessary for the First and Second Defendants to persuade me that there is a justifiable basis for the judgments presently entered against them to be set aside. If I am not persuaded that there is such a basis, it follows that the orders for writs of possession sought by the Plaintiff should be made.

Legal principles

1. [30]

   The Court has the power to set aside or vary a default judgment (other than a default judgment given in open court) under UCPR r 36.16(2)(a).

2. [31]

   The principles informing the exercise of the Court’s discretion to set aside a judgment entered by default are well established. They have been settled over decades by numerous cases. I respectfully adopt the summary of those principles set out by McColl JA in Dunwoodie v Teachers Mutual Bank Ltd [2014] NSWCA 24; 9 BFRA 433 at 440 [43]–[46] (Dunwoodie):

3. [32]

   As observed by her Honour, the exercise of this discretion is conditioned by ss 56–60 of the Civil Procedure Act 2005 (NSW) (the CPA).

4. [33]

   In the related context of an application to set aside a judgment obtained after an undefended hearing, the Court of Appeal in Magnate Projects Pty Ltd v Youma Constructions (No 2) Pty Ltd [2005] NSWCA 331 (Hodgson JA, Campbell AJA agreeing) (Magnate Projects) observed at [52] that:

5. [34]

   This principle has been applied by analogy in the context of an application to set aside a default judgment: National Australia Bank Ltd v Mellander [2023] NSWSC 1171 at [17] (Dhanji J).

The First and Second Defendant’s motions

1. [35]

   In its draft proposed Defence, the First Defendant raises a broad spectrum of possible defences. However, it concedes the advancement of the Loan, the execution of guarantees and the granting of the mortgages. Relief is sought on the following bases:

   1. (1)

      the Contracts Review Act 1980 (NSW) (the CRA);

   2. (2)

      unconscionable conduct pursuant to s 12CB of the Australian Securities and Investments Commission Act 2001 (Cth) (the ASIC Act);

   3. (3)

      equitable unconscionability;

   4. (4)

      unconscionability on the basis of “asset-based” lending by advancing the Loan primarily on the value of the security properties rather than the Defendants’ ability to service the debt, and a failure to obtain or verify income documentation; and

   5. (5)

      the existence of special disadvantage apparently suffered by all the Defendants on the basis of urgency, financial pressure and inequality of bargaining power.

2. [36]

   In paragraph 11 of the First Defendant’s draft proposed Defence, it observes that the Defendants are currently in the process of selling the security properties. This matter was reiterated in oral submissions by Ms Clare Perry. At paragraph 12 of the draft proposed Defence, the First Defendant says:

3. [37]

   Ms Clare Perry states, at paragraph 31 of her affidavit, that in approximately July 2025 the mortgage broker acting for the Defendants contacted the Plaintiff seeking to arrange an early refinance of the Ambarvale Property. The affidavit also states that the Second Defendant was in hospital at the time the Plaintiff issued s 57 notices to her. Her severe health conditions required a below-knee amputation. It is alleged that the Plaintiff was aware of the Second Defendant’s condition.

4. [38]

   Nothing in that affidavit provides any factual support for the contentions contained in the draft proposed Defence.

5. [39]

   The Second Defendant seeks orders that the default judgment entered against her be set aside and that she be granted leave to file and rely upon the Defence annexed to her affidavit dated 30 March 2026.

6. [40]

   The Second Defendant in that affidavit sets forth the difficulties she encountered in seeking to comply with the orders I made requiring the filing of her Defence in accordance with the orders set forth above. Nearly all of the affidavit deals with those circumstances. She deposes to having a genuine defence which has merit and “strong prospects of success”.

7. [41]

   In comparison to the First Defendant’s position, there is some evidence before the Court, in the Second Defendant’s affidavit sworn 26 March 2026, that may inform her defence. These are, in summary:

   1. (1)

      the Second Defendant was asked to sign documents in relation to the Loan obtained by the First Defendant and did so in order to assist her family in circumstances where they were under pressure to obtain finance;

   2. (2)

      she states that she did not enter into the transaction for her own benefit nor receive any financial benefit. Further, she did not fully understand the nature and effect of the Loan documents nor understand that her home was being placed at risk in the way that has occurred; and

   3. (3)

      she says she did not receive any explanation about the level of risk involved, the consequences of default nor her capacity as an aged pensioner to service a loan of this kind.

8. [42]

   As regards the draft proposed Defence, it repeats a number of these factual matters. The Second Defendant uses those assertions to claim that she was in a position of “special disadvantage” of which the Plaintiff knew or ought to have known. The Second Defendant pleads that it was “unconscionable” for the Plaintiff to accept the Second Defendant as guarantor. She also asserts the transaction was, in substance, asset-based lending.

9. [43]

   Against those motions, the Plaintiff relies upon two affidavits of Mr Justin James Mathews sworn on 9 February 2026 and 10 April 2026. The affidavits, which are not contested, reveal the following.

10. [44]

    In applying for the Loan, the Second and Third Defendants provided to the Plaintiff forms that verified their identities. These forms included their addresses and email addresses. The Second Defendant also provided to the Plaintiff a copy of her government-issued photo card. The Third Defendant provided a copy of his driver licence.

11. [45]

    The Plaintiff’s solicitor has corresponded with the Defendants since 15 August 2025 in relation to the defaults. This correspondence culminated in the letter the Plaintiff’s solicitor sent to the First Defendant’s registered office on or about 24 September 2025 cancelling the Facility, terminating the Deed and demanding immediate repayment of $1,725,622.90.

12. [46]

    None of the Defendants in their correspondence with the Plaintiff’s solicitors appear to have raised the circumstances on which the Defendants now seek to rely in defence to the claim. Rather, Mr Mathews records in his 9 February 2026 affidavit that the Defendants stated on 10 September 2025 that their circumstances had changed. Mr Mathews states, in that affidavit, that the Defendants sought time to refinance the Loan with a new lender, subject to the sale of the Ambarvale Property. This was followed by correspondence on 16 September 2025 in which the Defendants stated that they anticipated having the Ambarvale Property ready for a (profitable) sale by the end of September 2025 and that a new lender was willing to refinance upon that sale.

13. [47]

    In his 9 February 2026 affidavit, Mr Mathews records that the Statement of Claim was served on the First Defendant on 3 November 2025, the Third Defendant on 24 November 2025, and the Second Defendant on 27 November 2025.

14. [48]

    The First Defendant annexed to its 18 December 2025 Notice of Motion a document styled “Defence”. On 19 January 2026, Mr Mathews requested that the Second and Third Defendants provide by 30 January 2026 particulars of any unfair and unconscionable conduct alleged in that document. He continued that the Plaintiff would rely on any response, or lack thereof, at the hearing of the application to set aside default judgment. Mr Mathews notes that the Defendants did not respond.

15. [49]

    Not only were no particulars provided to the Plaintiff, but the affidavits on which the Defendants rely do not articulate adequate or sufficient facts informing the First and Second Defendants’ draft proposed Defences. Those draft proposed Defences form the foundation of the First and Second Defendants’ applications.

16. [50]

    As the authorities set forth at [31] provide, default judgment will only be set aside if it is in the interests of justice to do so. Specifically, it must be in the interests of justice to permit the party seeking to set aside a default judgment to defend the proceedings. Considerations include any explanation for the failure to file a Defence in time and whether the defendant has an arguable defence on the merits. In this case, I am more concerned with the existence of a bona fide defence on the merits than any issues of delay.

17. [51]

    The First Defendant (and, as I shall address below, the Second and Third Defendants) raises a defence based on alleged facts. It was served with the Statement of Claim in early November 2025. It is irrefragable that ample time has passed to prepare evidence which provides some factual support for the assertions contained in the draft proposed Defence. No such evidence has been provided.

18. [52]

    At no point since August 2025, when the First Defendant defaulted under the Deed, has it issued any correspondence raising contentions which would support the draft proposed Defence. In addition, the Plaintiff’s request for particulars (albeit to the Second and Third Defendants) has not been answered in circumstances where the Defendants are family members and would presumably share knowledge of the facts that would support the existence of a bona fide defence on the merits.

19. [53]

    The Court is left with nothing more than unsupported assertions. As the Court of Appeal noted in Magnate Projects, quoted at [33] above, it was incumbent upon the First Defendant, as a judgment debtor seeking the exercise of the Court’s discretion, to set aside a default judgment, to introduce some evidence of facts that show a bona fide defence on the merits.

20. [54]

    In addition to these matters, the Plaintiff submits that the facts contradict the First Defendant’s assertions. The Plaintiff points to the Finance Application in which the Defendants stated that the Second and Third Defendants had income of $405,000 per annum and that the First Defendant had income of $370,000 per annum. The Plaintiff is entitled to rely upon this information in its attempt to persuade the Court that the Plaintiff was not engaging in asset-based lending. This information also points to the fact that documentation provided to the Plaintiff as lender indicated that the Defendants obtained independent legal advice from a solicitor, Mr Craig Reeve, before executing the Deed and other loan documents. Mr Reeve also witnessed the Defendants’ signatures.

21. [55]

    Apart from the deficiencies in the facts said to inform the First Defendant’s claim, as was explained in Dunwoodie at [45], it must be bona fide in seeking to rely upon its proposed Defence. I am not satisfied that it is. The effect of the proposed Defence is that the First Defendant is not liable to the Plaintiff. Yet as set out at [36] above, that Defence pleads that the Plaintiff remains “fully secured”, the First Defendant is attempting to sell the property, and that, in truth, what it seeks is a “stay of proceedings to allow for an orderly sale”. I consider that the First Defendant is seeking to rely on the proposed Defence for the ulterior purpose of attempting to delay the proceedings, rather than to obtain the relief to which it says it is entitled.

22. [56]

    In the light of the Plaintiff’s evidence and the absence of any relevant evidence from the First Defendant, I am not persuaded that the First Defendant has, or is seeking to rely upon, a bona fide defence. I therefore dismiss the First Defendant’s motion to set aside the default judgment.

23. [57]

    I am required to assess, in light of the Second Defendant’s affidavit evidence and the draft proposed Defence, whether I accept that the draft proposed Defence is bona fide on the merits. The lacunae in the facts sworn to by the Second Defendant present a significant challenge to my making that finding.

24. [58]

    For example, the Second Defendant fails to address the circumstances in which she came to sign the Deed. Not only does that document bear her signature in numerous places, her signature was witnessed by Mr Reeve. The executed documents include:

    1. (1)

       an “Important Notice to Guarantor” which warned of the serious nature of the guarantee obligation and the right to refuse or limit liability;

    2. (2)

       a statutory declaration by each individual guarantor declaring that they understood the terms of the Deed, signed freely and voluntarily without undue influence, obtained independent legal advice and that the Facility would not cause financial hardship; and

    3. (3)

       a “Declaration by Third Party Mortgagor” which confirmed receipt of independent legal advice and voluntary execution of the Deed and mortgage documents.

25. [59]

    The statutory declaration was made in the presence of a solicitor. There is no evidence from the Second Defendant suggesting that the statutory declaration was falsely declared. In those circumstances, I am not prepared to find that the statutory declaration was falsely declared. Much of that statutory declaration contradicts the Second Defendant’s affidavit. Specifically, it states that:

    1. (1)

       the Second Defendant was a guarantor;

    2. (2)

       she understood the terms of the Deed;

    3. (3)

       she freely and voluntarily executed the Deed without undue influence or pressure from any third party;

    4. (4)

       she had the opportunity to obtain, and did obtain, independent legal advice before signing the Deed;

    5. (5)

       she had considered and understood the “nature and effect” of the documents and transactions contemplated by the Deed; and

    6. (6)

       the Plaintiff entered into the Deed at the Second Defendant’s request and in reliance upon her statutory declaration.

26. [60]

    The Second Defendant also signed a declaration that she is a “Third Party Mortgagor, Guarantor, Surety Mortgagor or Indemnifier” for the Plaintiff for the Loan as it related to the Ambarvale and Rosemeadow Properties and that she had received independent legal advice from Mr Reeve.

27. [61]

    The Second Defendant does not address these matters in her 26 March 2026 affidavit. In the face of a statutory declaration witnessed by an independent solicitor, the contents of the Second Defendant’s 26 March affidavit are difficult to accept.

28. [62]

    In an application of this kind I must be persuaded that the Second Defendant has a bona fide defence on the merits. The Second Defendant’s failure to address these matters, especially in circumstances where these proceedings have been on foot for many months, is a strong factor in my consideration of whether I am persuaded that she has a bona fide defence on the merits. I am not so persuaded.

29. [63]

    For those reasons, the Second Defendant’s motion to set aside the default judgment is dismissed.

The Third Defendant

1. [64]

   The Third Defendant’s position is different from that of the First and Second Defendants. He complied with the Court’s orders to file his Defence and so no judgment has been entered against him. He does not need to persuade the Court of anything.

2. [65]

   The Plaintiff acknowledges that there is no default judgment against the Third Defendant but states that the Defence should be struck out for essentially the same reasons that inform its attack on the existence of a bona fide defence on the merits contained in the First and Second Defendants’ draft proposed Defences. The Plaintiff submits that the Third Defendant, in addition to matters raised by the First Defendant, claims to have relied on the mortgage brokers and says that the default notices were sent to the wrong addresses. The Plaintiff responds that there is no dispute that the Third Defendant has been on notice of the default for months, and there is no evidence that any incorrect service of the default notices has had any effect.

3. [66]

   The Third Defendant’s Defence is deficient in a number of ways. First, and most significantly, it fails to articulate any material facts which give rise to a proper defence beyond mere assertions that the Plaintiff’s conduct was “unconscionable” and the Deed, the Loan and attendant securities were “unjust”.

4. [67]

   Secondly, the Third Defendant’s Defence seeks to “adopt” the First Defendant’s draft proposed Defence “insofar as it is applicable”. The Plaintiff should not have to intuit which parts of a Defence apply and which do not.

5. [68]

   Thirdly, I do not see the relevance of the speed at which the transaction took place, nor why the Third Defendant’s reliance on brokers or other parties has any bearing on the enforceability of the Loan and mortgage.

6. [69]

   I consider that that the Third Defendant’s Defence as pleaded is embarrassing in the sense articulated by Hodgson JA (with whom Mason P and Handley JA agreed) in Kirby v Sanderson Motors Pty Ltd (2001) 54 NSWLR 135; [2002] NSWCA 44 at 142 [20] – 143 [21], and that it will inevitably fail. For these reasons, as well as the reasons given in relation to the First and Second Defendants, I will order the Third Defendant’s Defence be struck out pursuant to UCPR r 14.28.

7. [70]

   However, I will grant the Third Defendant an opportunity to replead his Defence, subject to one major qualification.

8. [71]

   In addition to filing a further Defence, I require the Third Defendant to file an affidavit of ‘facts and circumstances’, whereby he must explain the circumstances in which he entered into the Loan and the Deed, as well as his execution of his statutory declaration as guarantor and the declaration of receipt of independent legal advice. These are matters which the Plaintiff is entitled to know at this stage of the proceedings in order to assess whether there is, in fact, a bona fide defence on the merits. At present it is not apparent to me that one exists, but I am prepared to allow the Third Defendant one further opportunity to demonstrate that one is available to him.

Costs

1. [72]

   The Plaintiff seeks its costs on an indemnity basis. While the Court retains a discretion with respect to costs under s 98 of the CPA it will generally, in the absence of good reason for doing otherwise, give effect to an agreement providing an indemnity when making an order for the costs of the proceedings to enforce such an agreement: Macquarie International Health Clinic Pty Ltd v Sydney South-West Area Health Service (No 3) [2010] NSWSC 1139 at [39] (Nicholas J). That a mortgagee may rely upon its contractual entitlement to claim indemnity costs (provided the terms of the agreement are “plainly and unambiguously expressed”) was recognised in Kyabram Property Investments Pty Ltd v Murray [2005] NSWCA 87 at [12]–[13] (Beazley JA, Hodgson and Ipp JJA agreeing).

2. [73]

   The relevant clause of the Deed states:

3. [74]

   I consider the language of that clause to be sufficiently plain and unambiguous to justify an award of indemnity costs. I will make such an order against the First and Second Defendants. Costs in relation to the Third Defendant will be considered when the claim against him is finally determined.

Orders

1. [75]

   Accordingly, I make the following orders:

   1. (1)

      The Defendants’ Notice of Motion filed on 18 December 2025 be dismissed.

   2. (2)

      The stay ordered by Slattery J on 18 December 2025 and subsequently extended be discharged.

   3. (3)

      The First Defendant’s Notice of Motion filed on 13 April 2026 be dismissed.

   4. (4)

      The Second Defendant’s Notice of Motion filed on 13 April 2026 be dismissed.

   5. (5)

      The Plaintiff have leave to issue a writ of possession forthwith in respect of the land described as X XXXXXX XXXXX, Rosemeadow NSW, folio identifier XXX/XXXXXXX, with such writ to lie in the Registry for a period of 42 days from the date of this order.

   6. (6)

      The Plaintiff have leave to issue a writ of possession forthwith in respect of the Second Defendant’s interest in the land described as XX XXXXXXX XXXXX, Ambarvale NSW, folio identifier XXX/XXXXXX, with such writ to lie in the Registry for a period of 42 days from the date of this order.

   7. (7)

      The Third Defendant’s Defence be struck out pursuant to UCPR r 14.28.

   8. (8)

      The Third Defendant be granted leave to file, by 4 pm on 1 May 2026, an Amended Defence to the Statement of Claim together with an affidavit setting out the facts and circumstances in which he signed the Deed.

   9. (9)

      The First and Second Defendants pay the Plaintiff’s costs of the proceedings to date on an indemnity basis. This order supersedes previous costs orders made in these proceedings.

   10. (10)

       The proceedings against the Third Defendant be listed for directions on 6 May 2026 at 9.30 am.