Edmonds v Barrington Winstanley Group Pty Ltd (No 2)

1. [1]

   FREE JA: Before the Court is a notice of motion filed in Court today seeking a release from an undertaking given on 18 November 2025, on the basis of the proffer of a new undertaking in varied terms. Also before me is a notice of motion filed on 17 November 2025 seeking a stay of execution of a judgment for possession of 6 August 2025 and a writ of possession issued on 25 August 2025 until the final determination of the application for leave to appeal against the judgment of Faulkner J on 6 August 2025. That notice of motion came before me on 18 November 2025. On that occasion, the applicants through their counsel proffered an undertaking in the following terms:

2. [2]

   I gave judgment on 18 November 2025, and subsequently published my reasons for judgment on 20 November 2025. I relevantly ordered that upon that undertaking, the writ of possession and judgment be stayed for 22 days from 18 November 2025. That period of 22 days expired on 10 December 2025.

3. [3]

   The background to the proceedings and my findings, including about the respective prejudice asserted by each party, is contained in that judgment and I do not repeat it here. However, reference should be made to that judgment to understand the background to my reasoning today and the considerations of prejudice that I take into account. Also on 18 November 2025 I stood over the notice of motion filed on 17 November 2025 for directions before the registrar on 10 December 2025. That was on the basis that by that date, according to the undertaking, money would have been paid into court as per the undertaking, or in the absence of that occurring, the parties would address how to proceed.

4. [4]

   The applicants, as events transpired, failed to pay any money into court in accordance with the undertaking they gave to the Court. Under the terms of that undertaking, they are now required to deliver up possession of the property to the respondent, Barrington Winstanley Group Pty Ltd. The applicants now seek that the existing undertaking be released, in favour of a variation of the undertaking, the effect of which would be to extend until 2 February 2026 the time for payment, and an increase in the amount to be paid to $875,000. This application for a variation of the undertaking was first raised yesterday when the matter came before the registrar. The matter came before me today for hearing, as on the last occasion, in circumstances of urgency. The respondent has organised for the Sheriff to attend to take possession of the property tomorrow, that is, 12 December 2025. As such, there is a need for urgent resolution of the application to vary the undertaking.

5. [5]

   The applicants have provided to the Court today a draft notice of appeal and application for leave to appeal. This reflects a substantial refinement of the proposed grounds of appeal as compared with what was put before me on 18 November 2025. It is unnecessary for the purposes of resolving the notice of motion to address the proposed grounds of appeal in any great detail.

6. [6]

   Mr Pesman SC, who appeared for the respondent, submitted that the appeal grounds, while weak, were not such that I should determine this application on the basis that there were no arguable grounds of appeal. I adopt that approach, which is consistent with the approach I took on 18 November 2025.

7. [7]

   The respondent opposes the application to vary the undertaking. As I have mentioned, the respondent has made arrangements with the Sheriff to take possession tomorrow of the property and it has not deviated from that course in light of the attempt to vary the undertaking. The respondent complains, legitimately in my view, that this is the latest in a series of occasions on which the applicants have effectively moved at the 11th hour forestall possession without fair and orderly notice to the respondent and without, it seems, any good explanation for why matters could not have been done in a more fair and orderly way.

8. [8]

   I am not satisfied that there is a proper basis to vary the undertaking to provide the further indulgence that the applicants seek. The evidence that the applicants now put before the Court in an attempt to explain what has transpired and in an attempt to give some comfort that they will be in a position to pay $875,000 into court by 2 February 2026 is wholly deficient.

9. [9]

   The applicants through their counsel provided a solemn undertaking to the Court on 18 November 2025. If the applicants did not appreciate the gravity and solemnity of the undertaking that they were giving, the fault unfortunately is entirely theirs. Equally, if the applicants gave that undertaking in circumstances where they did not have a firm foundation to expect that they would be in a position to pay the amount in question into court by 9 December 2025, the fault lies with the applicants.

10. [10]

    Unfortunately, the evidence provided by the applicants today provides no explanation of how it was that the applicants expected, if they did, as of 18 November 2025, that they would be in a position to fulfil the undertaking that they gave on that day. No evidence is given as to the amount of money that was then available to the applicants to pay into Court. There is merely evidence of an entirely superficial nature that the applicants took some steps after 18 November 2025 to seek to raise funds.

11. [11]

    Contact was apparently made with a financial broker with a view to borrowing funds, but no detail is provided that would allow the Court to understand the steps taken to advance that process or how the applicants and the broker have progressed any application for borrowing. The Court cannot be satisfied that the applicants acted responsibly and efficiently to seek to borrow funds, nor can the Court be satisfied on the limited available evidence that there is a realistic prospect of any particular amount of funds, let alone sufficient funds, becoming available through this process between now and 2 February 2026.

12. [12]

    Reference is made in the applicant’s evidence to funds being provided by two relatives. A nephew, Robert Freeman, is apparently prepared to contribute an amount of $680,000 towards the required payment into Court as per the undertaking, once an inheritance due to him at the end of January 2026 is forthcoming. The email that is in evidence from Mr Freeman implies that he expects that this would be a loan secured by a transfer of the mortgage currently held by the respondent. But the same email records an understanding, which on its face is erroneous, that the respondent is prepared to accept $680,000 in satisfaction of its claim.

13. [13]

    There is in fact no firm basis emerging from this evidence to expect that Mr Freeman will in fact provide $680,000 before 2 February 2026, once he understands the true position of the applicants and the respondent. The problem is exacerbated by the fact that there are other mortgagees with claims over the property, which one would expect would lead Mr Freeman, if he is acting rationally, to at least have pause before lending $680,000 on the security of the property. There is no evidence that Mr Freeman is aware of the true security position and is nevertheless prepared, let alone committed, to lend $680,000.

14. [14]

    These are all deficiencies, which, as with the other matters I referred to in this judgment, the applicants ought to have been aware of and ought to have addressed in their evidence. Nor is there any satisfactory explanation of where the balance of the funds would come from, even if Mr Freeman does lend $680,000. There is reference to another family member, a Mr Andrew Bell, assisting with arranging a line of credit secured by a family member’s unencumbered property. The relevant correspondence to which that evidence refers suggests that it is Mr Bell’s own property.

15. [15]

    There is no evidence, however, of how much money Mr Bell is prepared to lend or gift, as the case may be, to the applicants, let alone evidence that he is committed to lending or gifting any such amounts. Mr Burchett, who appears for the applicants, asked the Court to infer that an unencumbered property is likely to be of significant value. That is a difficult inference to draw, at least at any level of relevant specificity, in circumstances where there is no evidence whatsoever about the type of property. But, even if one assumes the property is likely to be of substantial value, there is no evidence about how much money would then be forthcoming for the applicants, or the terms that would attach to that, or the time at which it is likely to be provided.

16. [16]

    Given these circumstances, the Court must now proceed on the basis that the undertaking was given on 18 November 2025 without the applicants having any firm foundation at that time for expecting that they would, in fact, be in a position to comply. The applicants, in seeking the indulgence of a further period of time by way of a variation of the undertaking, must have appreciated that it was incumbent on them to provide a clear and reliable account of their plan for meeting the extended timetable for payment that they sought. They have conspicuously failed to do so. To vary the undertaking to extend the time for payment would now be an exercise in hope over reasonable expectation.

17. [17]

    In those circumstances, I do not accept the submission advanced by the applicants that there has been a relevant change in circumstances since the undertaking was given on 18 November 2025. There are other factors that also tell against acceding to the variation to the undertaking. The applicants point out, correctly, that the further time being sought is relevantly short in duration. It might be said, in that connection, that the respondent does not face any substantial further prejudice by a variation to the undertaking, and an extension of the time for payment. While there is some force in that approach, there are other factors that make an extension inappropriate, in my view.

18. [18]

    There remains a significant uncertainty about the remaining equity in the property. Even assuming that it is worth $3 million, as asserted by the applicants and seemingly not disputed by the respondent, there are three mortgages over the property. Most significantly, as explained in my judgment published on 20 November 2025, Murray Laws is owed substantial funds by the applicants secured against the property. The position in relation to Murray Laws has, at least, been normalised in one respect, in that Mr Smits of Murray Laws is no longer the solicitor on the record acting for the applicants in these proceedings.

19. [19]

    However, the amount owing to Murray Laws remains uncertain. The respondent has, pursuant to the orders I made on the last occasion, obtained documents indicating that through a combination of legal costs and borrowings, the total amount owed to Murray Laws by the applicants, not taking into account interest, is over $1 million. Murray Laws has an entitlement, on the face of the relevant agreements, to interest in an aggressive monthly rate, which is submitted to be equivalent to something in the order of 60% per annum.

20. [20]

    The applicants have been aware for some months that the ambiguity surrounding the debt owed to Murray Laws is a matter of significance, in particular as a factor affecting the position of the respondent and any prejudice to it through delay in enforcement of the writ of possession. Despite this, the applicants have failed to take the opportunity to provide clear and reliable evidence about the amount that is definitely owing. Before me today, the applicants relied on an email from Mr Smits of Murray Laws, and it is an email of 11 December 2025 at 11.03am. It says, “as just requested by Mrs Edmonds, we confirm our willingness to accept $750,000 in satisfaction of the secured debt owing to us by Mr and Mrs Edmonds, subject to payment of counsel’s fees.”

21. [21]

    Mr Pesman of Senior Counsel indicated that he placed no particular reliance on the qualification relating to the payment of counsel’s fees in circumstances where, over the course of proceedings, the applicants have not substantially involved counsel. However, he points out as to the balance of the email, in my view correctly, that the most that could be said of the email is that it amounts to an invitation to treat about the amount owed to Murray Laws. It does not record or evidence a reliable binding agreement capping the amount owing at $750,000.

22. [22]

    In the circumstances, there remains ongoing uncertainty, which the applicants could and should have resolved, about the true equity position affecting the property and the risks facing the respondent in any ongoing deferment of their execution of the writ of possession.

23. [23]

    As I explained in my judgment of 18 November 2025 published on 20 November 2025, there is a significant issue about the welfare of the livestock on the property which is raised by any change in possession. Here, there is an element of deficiency in the evidence advanced by the respondent in that the Court does not have evidence of any specific plan for the treatment of the livestock if the respondent takes possession of the property tomorrow as currently proposed.

24. [24]

    However, as Mr Pesman submitted, the applicants bear the primary responsibility in this regard. The applicants have known since 18 November 2025 that if they did not pay the money into court, they would be obliged on their own undertaking to deliver up possession of the property. As Mr Pesman reminded me, I made pointed remarks in my judgment about what the applicants could expect if they did not comply with the undertaking.

25. [25]

    On the evidence, which is now available to the Court, the applicants must have appreciated long before 9 December 2025 that they would not be in a position to comply with the undertaking by paying the required money into court. They took no steps to approach either the respondent or the Court to explain the position in anticipation of their default and to seek an orderly variation of the undertaking. Nor, it seems, on the evidence, did they make any plan for how the livestock should be treated if the applicants were, in fact, required to deliver up possession shortly after 10 December 2025. The applicants cannot now have the benefit of having apparently shut their eyes to reality.

26. [26]

    The respondent has indicated that it will adopt a cooperative approach to the treatment of the livestock, and in the circumstances, the Court can only proceed in the expectation that this will occur. The lack of more specific evidence or undertakings in this regard, while unfortunate, is not, in my view, a sound reason for giving the applicants a variation to the undertakings in circumstances where their application in that regard is otherwise wholly lacking in merit. For these reasons, I dismiss the notice of motion filed in Court today, and also the notice of motion filed on 17 November 2025.

Orders

1. [27]

   I propose the following orders:

   1. (1)

      Notice of motion filed on 17 November 2025 is dismissed.

   2. (2)

      Notice of motion filed on 11 December 2025 is dismissed.

   3. (3)

      The applicants are to pay the respondent’s costs of the Notice of Motion filed on 11 December 2025.

   4. (4)

      The applicants are to pay the respondent’s costs of the Notice of Motion filed on 17 November 2025, in respect of costs from 19 November 2025 onwards.