Century 311 Pty Ltd v Confos

1. [1]

   These proceedings are in the Possession List in the Common Law Division of this Court.

2. [2]

   The plaintiff, Century 311 Pty Ltd, is an assignee of a lender with whom the defendant, Mr Confos, entered into a loan transaction secured by a mortgage over a Dover Heights property of which he is the registered proprietor.

3. [3]

   The loan was advanced to a company of which Mr Confos is the sole director and secretary. He entered into a Deed of Guarantee of the obligations of the borrower and it is his obligations under that guarantee that is secured by the mortgage.

4. [4]

   The plaintiff in the proceedings sues pursuant to a Deed of Assignment of the right, title and interest of the original lender and it has also taken a transfer of its registered mortgage.

Determination of the defendant’s adjournment application

1. [5]

   When the matter was called on for hearing before me today, Mr Newton SC, who appears for the plaintiff, told me that the matter was ready to proceed. However, Mr Young SC, who appears for the defendant, informed me that he had an application for an adjournment of the proceedings.

2. [6]

   The application for adjournment was made orally, and I permitted this to occur, on three grounds. The first ground is that this morning, Mr Newton informed Mr Young that it was his intention not to read the affidavits of two witnesses which had been served on the defendant, and in respect of whom the defendant had given notice that the deponents were required for cross examination. Those two witnesses are Rohit Ram Shrestha and Jiang Han. Mr Shrestha is an officer of the plaintiff company, that is to say, the assignee company. Mr Han is an officer of the original lender.

3. [7]

   Mr Newton informed me that he intended to proceed only on the basis of the affidavits of his instructing solicitor who attaches, in the conventional way, all of the relevant legal documentation upon which the plaintiff relies to make good its case.

4. [8]

   The second ground advanced on the adjournment application is that on 5 December 2025, the defendant's solicitors issued a subpoena to produce to the proper officer of BHG First Capital Management Pty Ltd, which subpoena was returnable on 12 December. Mr Morrison, the plaintiff's solicitor, gave evidence before me that there was no return of the subpoena on 12 December 2025 and that the Registrar stood the matter to today when the matter was to come before me. I caused the subpoena recipient to be called outside the Court three times, in accordance with the convention, and there was no appearance by or on behalf of that person.

5. [9]

   The third ground relates to the defendant's psychiatric condition and two reports of the consultant psychiatrist, Dr Robert Fisher, the first dated 11 December 2025 and the second dated 12 December 2025 have been tendered. It is perhaps better to deal with the merits of the application without summarising Dr Fisher's opinion at this stage.

6. [10]

   Mr Newton opposes an adjournment. I should say that, as a matter of procedural history, an adjournment application notably advanced on two different grounds was refused by Faulkner J on 2 December 2025, although nothing is made of that in the arguments of Mr Newton before me.

Questions in dispute

1. [11]

   Before dealing with the three grounds I have briefly outlined, I should say something about the issues for determination in the case.

2. [12]

   The substantial question for determination in these proceedings really, as often occurs, arises out of the defendant's cross-claim under which he is seeking to challenge the title of the original borrower and, therefore, the derivative title of the plaintiff by seeking remedies under the Contracts Review Act 1980 (NSW) (Contracts Review Act), and alternatively, under the provisions of s 12CA of the Australian Securities and Investments Commission Act 2001 (Cth), and further in the alternative, under the general principles of equity for unconscionability. The last two categories have a strong overlap, of course.

3. [13]

   The case for the defendant, put shortly, is that his indebtedness arose due to the undue influence of his cousin and godson, a John Adgemis, whose development enterprise has collapsed. Although the relationship of cousin, and, for that matter, godson, are not recognised relationships of influence for under the general law principles, by his affidavit evidence, the defendant seeks to establish the necessary facts to engage with the general principle, notwithstanding what I have said about the categories.

4. [14]

   Naturally, his claim under the Contracts Review Act, in particular, does not depend upon the concept of unconscionability and, for that reason, the elements of the statutory cause of action can perhaps more readily be established than those causes of action which depend upon the element of unconscionability. As against the plaintiff and, as I have said, as against the original lender, the prospects of success of a claim are not entirely, but to the extent to which they depend on unconscionability, dependent upon the knowledge or constructive knowledge on the part of the lender of the defendant's relevant vulnerability.

5. [15]

   Mr Young acknowledges in his outline of submissions that he has filed in accordance with the Practice Note that although it is not strictly necessary to prove knowledge, for the Contracts Review Act case and given the discretionary nature of the remedy under s 7 of that Act, the Court is slow to set aside what appears to be an arm's length commercial transaction in circumstances where the plaintiff is innocent of any conduct contributing to any relevant injustice arising out of the transaction.

6. [16]

   It is expected, given what Mr Newton has said about how he proposes to present the plaintiff's case, that the evidence for the plaintiff will be short, and that the larger part of the hearing will be taken up by the defendant's case on the cross-claim.

7. [17]

   Given the time that has elapsed dealing with this adjournment application, and I make no criticism of anyone, it is unlikely the proceedings will finish today but given what Mr Newton has said about the expected length of any cross-examination of the defendant, it would finish tomorrow.

Consideration

1. [18]

   I return then to the grounds on which the adjournment is sought. So far as the first ground is concerned, I think it is legitimate in the way of modern practice in this Court that, bearing in mind the high degree of disclosure required of all parties to the litigation when evidence is exchanged and assembled into the Court Book for the hearing of the matter, opposing parties legitimately have an expectation that the deponents to affidavits or makers of witness statements whose attendance has been required for cross-examination will be called in the case. Insofar as that is concerned, it is not unusual for a party to litigation to hope to obtain helpful evidence for their case from the opponent’s witnesses. This is a perfectly natural and common enough approach to cross-examination.

2. [19]

   Mr Young says that the defendant has now been deprived of such advantage as may have flowed from that. Before leaving the first ground, Mr Newton points out that Mr Shrestha is an officer of the plaintiff company, that is to say, the assignee, and not of the original lender. He has not been shown to have any knowledge of the circumstances in which the original loan was advanced that would be in any way helpful even as a possibility to the defendant. Mr Han, on the other hand, is an officer of the original lender.

3. [20]

   The deficiency which Mr Young has candidly drawn to my attention is that in the absence of the original loan application documentation, absent any witnesses from the original lender, it may be difficult for the plaintiff to prove knowledge of his vulnerability or at least constructive knowledge of those circumstances, absent admissions or concessions.

4. [21]

   He submits, I think, with respect correctly, that one would expect to see in the original loan application and surrounding documentation, what inquiries were made by the lender, what information the lender was provided with and what surrounding circumstances were likely to be known to both parties which may be important aspects of the type of claims that the defendant makes for relief from the terms of the mortgage.

5. [22]

   Turning to the second ground, Mr Newton makes the point that the subpoena was only issued at the very heel of the hunt on 5 December, and only after Faulkner J refused the adjournment application on 2 December. Had those then representing the defendant turned their minds to the nature of the causes of action they were propounding in the cross-claim, it would have been obvious to them that attempts should have been made to obtain documents of this type long ago and not at the last minute. He reminds me, of course, that he doesn't appear for the original lender, and there is force in his submission.

6. [23]

   I turn then to the third ground which relates to the psychiatric condition of the plaintiff. It is necessary to say that on the plaintiff's case, to borrow an expression from Mr Young's submissions, he was entirely under the thrall of Mr Adgemis and was compliant with any requests for money that Mr Adgemis made of him for that reason. It is quite obvious from reading his evidence and the history he gave to the psychiatrist that if his evidence was accepted, one might think Mr Adgemis bled him dry from his entitlements under his mother's estate to the property portfolio he had established himself when he was in practice as a pharmacist, and now to his own long-standing home which is the subject of the plaintiff's application for judgment for possession.

7. [24]

   It is unsurprising, then, that perhaps in those circumstances that, given that Mr Adgemis' business interests have apparently collapsed and the defendant is left holding the only valuable security for loans that were made, albeit to him and his company, but for the benefit of Mr Adgemis and his corporate interests, that the defendant has had, in Dr Fisher's opinion, an extremely bad psychological reaction to his prospective and possibly imminent financial ruin and the financial ruin of his wife and extended family.

8. [25]

   Symptomatically speaking, Dr Fisher said this, which is a neat summary of the process (p12 [4]):

9. [26]

   And at par [7]:

10. [27]

    It is also apparent that Dr Fisher received a history that the defendant has been subject to suicidal ideation, although he has not so far been moved to make any attempt. So far as the diagnosis is concerned, in his first report Dr Fisher mentioned symptomatology suggesting a Post-Traumatic Stress Disorder. That seems to have been somewhat refined in the second report, where (at page 2) he said the following:

11. [28]

    The second paragraph I have quoted demonstrates, I infer, that Dr Fisher is of the view that the defendant's condition is a serious one, well over and above what might be a less serious condition of Adjustment Disorder.

12. [29]

    Dr Fisher is of the view that treatment for these conditions is required as a matter of urgency because in his state of rumination about his ruination, he is at risk, in Dr Fisher's opinion, of attempting suicide. Dr Fisher is of the view that a significant improvement could be achieved sufficient for the defendant to cope with a Court appearance after a month of treatment. He regards the probability of such an improvement occurring as in the order of 60%.

13. [30]

    The fundamental basis of this aspect of the adjournment is Dr Fisher's opinion, as explained in his first report, about the applicant's significant difficulties, “marked difficulty” is the expression used by Dr Fisher, in being required to give evidence. Naturally, his evidence-in-chief is in his affidavit, but specifically under cross-examination.

14. [31]

    The applicant gave his own assessment of it, which Dr Fisher recorded, however the “marked difficulty” is Dr Fisher's opinion and not the applicant's own assessment as I read the report. Dr Fisher expresses the conclusion:

15. [32]

    Mr Newton had not seen these reports prior to coming to court today and he read them at the same time as I read them upon their tender. He submits that given what is contained in Dr Fisher's reports, steps can be taken with full understanding of the defendant's condition to ease, as it were, the burden of his participation in the proceedings as an essential witness. Indeed Mr Newton suggested one way around the difficulty the defendant may suffer, having regard to Dr Fisher's opinion, would be for Mr Newton to dispense with his right to cross-examine the defendant, provided he was permitted to contradict aspects of the defendant's case which he wishes to challenge by reference to the documentary evidence which would in any event form the basis of his cross-examination. He says, in any event, that he did not expect the cross-examination, from his point of view, to extend beyond about one and one half hours, not a long time for a cross-examination in a case raising the type of issues raised here.

16. [33]

    Mr Young made a number of points in regard to the desirability of dispensing with cross-examination. In not any particular order of significance: first, that the plaintiff ought to be allowed to meet the challenges to his account that would be made in cross-examination to enable me as the tribunal of fact to form an impression of him in relation to whether or not I find him to be a reliable witness; secondly, to enable him the opportunity to explain any apparent contradictions in the documentary material, even if Mr Newton did not have in mind challenging his creditworthiness; and thirdly, if there was to be a challenge to credit in any respect in regard to the documentary material, he should be given the opportunity that the rule in Browne v Dunn insists is essential to a fair trial of being confronted with the challenge personally in the witness box.

17. [34]

    I should say in response, that Mr Newton, like Mr Young, an experienced senior counsel in matters of this kind, informed me that he did not expect it would be necessary for him to challenge the defendant in that way on the basis of his intimate familiarity with the case he wishes to make. That may be so, but I regard the other two factors as being of some significance. And in any event one has to bear in mind that, although one can carefully map out a cross-examination, it is a dynamic process and answers to questions can change the course that the cross-examiner had in mind at the outset.

18. [35]

    A concern for me, as it was for Faulkner J, is two-fold. First, this is a secured creditor seeking to realise its security and it's entitled to do so with such expedition as the Court can accommodate. Secondly, adjourning the case may not make any real difference to the way it runs in any event when it returns, and although Dr Fisher's prognosis is better than guarded, it still remains perhaps a 40% chance that the defendant will be in no better position if the matter were to return to Court in the new law term.

19. [36]

    Moreover, I would be anxious that any adjournment, were I persuaded to grant one, would not be seen as an opportunity to revisit the issues that Faulkner J so carefully considered on 2 December 2025. There are proceedings in respect of the same property involving what appears to be a much greater burden of indebtedness and perhaps it should be said that the plaintiff who has succeeded in bringing these proceedings on with a commendable degree of efficiency should not be deprived of the benefit of its efficiency.

20. [37]

    My concern, of course, must be the interests of justice. That extends beyond the efficiency of the proceedings notwithstanding the significance of the overriding purpose encapsulated in s 56 of the Civil Procedure Act 2005 (NSW). It seems to me that the defendant probably does require the documentation the subject of the subpoena. Were that the only matter, given, if I may say with respect, it is a fairly obvious one, I might be inclined to force the matter on, as it were, without the opportunity to have access to that documentation, although there is no explanation as to why the recipient of the subpoena has not responded to it and I am satisfied it has been duly served. Although the subpoena came late in the piece, it seems a week was allowed for compliance with it, and one wouldn't have expected, given the Court's experience in such matters, that there would be a file that one could put one's hands on, whether it be electronically maintained or kept in hard copy. Absent a good explanation for the non-return of the documents required by the subpoena, I would have a concern that the interests of justice would not be served by forcing the defendant on without them.

21. [38]

    The real matter is the psychiatric condition of the defendant and what that means in relation to the fairness of the trial, notwithstanding the plaintiff’s, and in particular Mr Newton’s, willingness to fully cooperate with any modifications to the usual procedures that I would impose to, as it were, assist the defendant to give his evidence.

22. [39]

    Some of the problems that Dr Fisher referred to perhaps could not be satisfactorily overcome simply by treating the defendant with “kid gloves” so far as his psychological state is concerned. But I think significantly that if he is to be challenged about the reliability of his account in his affidavit, even if he is not to be challenged about his credit, he ought to be given the opportunity in the usual way to explain any apparent contradictions, if he can.

23. [40]

    I am conscious that we are in the last week of the law term and that the law vacation is about to commence but that, in objective terms, any adjournment need not necessarily be a long one I am of the view that the interests of justice require the adjournment, particularly in relation to the psychiatric condition of the defendant but also to enable the subpoena to be followed up in an appropriate way. I propose to grant the adjournment.

24. [41]

    Having made the decision to adjourn the matter, I have heard from counsel about whether any conditions should be imposed. Both parties are content for me to treat myself as being part-heard in respect of the matter and I am prepared to do that. I am also of a view that the matter should be listed as soon as possible in the new term which will mean some time in February. I am unaware currently of the availability of hearing dates generally in February, and I will consult with the listing manager in relation to that matter. I will ask counsel to give me their availabilities for February 2026 and I will have my associate advise them of the date I fix in chambers without the need for counsel to attend again.

25. [42]

    Apparently, there is a guillotine order in place, presumedly made by the list judge, Faulkner J, that precluding the defendant from filing any further affidavit evidence without first obtaining leave of the Court, and Mr Newton has asked that I explicitly or expressly continue that order subject to the defendant being permitted to rely upon any documents which might be produced if compliance with the subpoena I've referred to can be enforced. I'm prepared to continue the guillotine order.

26. [43]

    It would seem to me that a system whereby any draft additional evidence was provided to the plaintiff for its consideration to either consent or object, and in the event of objection obtaining the leave of the Court is not really too onerous and doesn't completely preclude the defendant from bringing forward further relevant evidence. I gather the concern of the plaintiff is lest there should be any reformulation of the defendant's own evidence, which is a legitimate concern I acknowledge.

27. [44]

    Mr Young has informed me that given the change in the way the plaintiff’s case is to be presented, he does have in mind seeking to call an officer of the original lender and it may well be that that person will not cooperate with the defendant in providing an affidavit but he wished not to be precluded from calling such a witness after further reflection when the hearing resumes. I am of the view that, given the change, he should be given that opportunity.

Issue of costs

1. [45]

   The final issue relates to costs. Understandably, the plaintiff applies for costs and Mr Young opposes an order for costs.

2. [46]

   I accept Mr Young's argument that the defendant has not been shown to be delinquent in relation to the reasons for the application for the adjournment. However, it does seem to me, given the refusal of the adjournment on 2 December and, may I say with great respect to Mr Young, as this adjournment application was promulgated with the shortest possible notice given to the plaintiff, that, at the very least, the costs thrown away by reason of the adjournment ought to be the plaintiff's costs in the cause, and I propose to make that order.

Orders

1. [47]

   Accordingly, my orders are:

   1. (1)

      The hearing is adjourned for further hearing before me on 23 February 2026 for 2 days.

   2. (2)

      The plaintiff’s costs thrown away by reason of adjournment are the plaintiff's costs in the cause.

   3. (3)

      The defendant is to serve any affidavit from any additional witness for which it requires the plaintiff’s consent by 2 February 2026.

   4. (4)

      The defendant is to notify the plaintiff of the name of any additional witness whom the defendant intends to compel to attend to give evidence by subpoena and of the nature of that witness' expected evidence by 2 February 2026.

   5. (5)

      Stand the subpoena to produce directed to the proper officer of BHG First Capital Management Pty Limited to Thursday, 18 December 2025 before the Registrar.