Hajjar v 104 880 088 Group Holdings Pty Ltd

THE COURT: This is an application for leave to appeal from consent orders made by Lindsay J on 1 February 2019 giving Westpac Banking Corporation Limited (“Westpac”) judgment for possession of a property at Lugarno owned by Mr Elias Hajjar, the present applicant.

The proceedings at first instance were commenced on 27 March 2018 by the present first respondent (“180GH”) against Mr Elias Hajjar as first defendant, Westpac as second defendant, Mr Nicolas Hajjar as third defendant and Prime Finance Pty Ltd, Mr Morris Malouf and Ms Shirley Malouf as fourth, fifth and sixth defendants respectively. 180GH alleged that it was the holder of a “Third Unregistered Mortgage”, that Westpac was the holder of a “First Registered Mortgage”, that Mr Nicolas Hajjar was the holder of a “Second Unregistered Mortgage” and that the fourth, fifth and sixth defendants were the holders of a “Second Registered Mortgage”.

The proceedings were listed for hearing before Lindsay J on 1 February 2019. Mr Elias Hajjar appeared in person. 180GH, Westpac and Mr Nicolas Hajjar had legal representation and the fourth, fifth and sixth defendants filed submitting appearances.

The consent orders that Lindsay J made on that day relevantly provided:

The reference to Family Court orders was to consent orders made on 5 April 2016 in proceedings between Mr Elias Hajjar and his wife, Ms Gedeon-Hajjar. They provided for the Lugarno property to be placed on the market for sale by private treaty, with the proceeds of sale to be applied, first, to discharge Westpac’s mortgage.

The transcript of the proceedings before Lindsay J on 1 February 2019 includes the following passages:

In his Summary of Argument dated 23 September 2019 and filed in this Court, Mr Elias Hajjar makes a number of allegations concerning 180GH and its Chief Executive Officer. It is not necessary, nor indeed possible on the limited information made available to the Court, to determine whether these allegations have any merit. What is relevant for present purposes is that Mr Elias Hajjar’s rights to pursue his grievances against 180GH were preserved by the consent orders made by Lindsay J. As indicated at [4(3)] above, subject to the discharge of Westpac’s debt, the proceeds of sale of the property are to be paid into court to await the determination of claims that Mr Elias Hajjar and others have to them. As also indicated above (at [6]), Mr Elias Hajjar admits his debt to Westpac and that he is in default of his obligation to repay that debt. He confirmed that in the course of his oral address to this Court.

For the following reasons, Mr Elias Hajjar’s Summary of Argument did not identify any arguable basis for the challenge he now apparently makes to Lindsay J’s consent orders. First, he has not identified any basis upon which he would not be bound by the consent which he gave, which is clearly reflected in the transcript of the hearing. A person challenging consent orders of this character needs to show grounds for setting them aside analogous to those required to vitiate an ordinary contract (Harvey v Phillips (1956) 95 CLR 235; [1956] HCA 27 at 243-4). Secondly, Mr Elias Hajjar has not in any event identified any aspect of the consent orders which conflicts with the grievances (about 180GH and its CEO, rather than Westpac) which he identified in his Summary of Argument.

Mr Elias Hajjar raised further matters in supplementary submissions which he filed in this Court on 22 November 2019.

First, Mr Elias Hajjar said that his wife should have been represented before Lindsay J because she has “equitable rights in the property”. He says in this respect that Lindsay J was not made aware of a caveat that she is said to have filed.

The consent orders however preserve Ms Gedeon-Hajjar’s interests by enabling her to claim against the proceeds of sale paid into court after discharge of Westpac’s debt (see [4(4)] above). It is plain from the Family Court consent orders that Ms Gedeon-Hajjar had no objection to the property being sold and Westpac’s debt being paid. Indeed, the Family Court consent orders provided for that to occur.

Secondly, Mr Elias Hajjar contended that Lindsay J “relied on Westpac’s apparent neutrality” in ordering that Westpac have possession of the property. It appears that Mr Elias Hajjar may contend in this respect that there is a financial relationship between Westpac and 180GH. Even if there is, it does not suggest anything untoward has occurred that might provide a basis for challenging Lindsay J’s orders, particularly bearing in mind that they were made by consent.

For these reasons, Mr Elias Hajjar has not shown that he would have any prospects of success on appeal if leave to appeal were granted. As a result, his summons seeking leave to appeal is dismissed with costs.