Australia, March 31 -- New South Wales Land and Environment Court issued text of the following judgementon March 4:

1. By an amended notice of motion filed on 19 December 2024, the defendant, Ms Suriawati Pypy, seeks orders pursuant to s 73 of the Civil Procedure Act 2005 (NSW) concerning the proper construction of a deed of settlement and forbearance (the S&F Deed) executed by her and Prime Capital Securities Pty Ltd (Prime), the plaintiff. The defendant also seeks an order for costs.

2. In addition, the question of whether orders should be made by the Court in accordance with signed consent orders filed with the Court pursuant to the S&F Deed was listed by the Registrar for hearing at the same time as the applicant's amended notice of motion.

3. In order to consider these applications, it is necessary to review their background.

Background

4. On 20 November 2020, Prime, Cemerleng Pty Ltd (Cemerleng), Audrie Hioe and Ms Pypy entered into a Loan, Security and Guarantee Deed (the LSG Deed) pursuant to which Prime agreed to lend to Cemerleng funds up to a limit of $415,000 and Cemerleng agreed to repay the funds advanced together with interest payable at the "Interest Rate", on the terms set out in the LSG Deed.

5. "Interest Rate" was defined in the LSG Deed to mean "the Higher Rate. However, if no Event of Default has occurred, the Interest Rate is the Lower Rate". In "Part 1 - Key Details", the Higher Rate was specified to be 1.5% per month and the Lower Rate was 6.95% per annum.

6. In the LSG Deed, Cemerleng, Ms Hioe and Ms Pypy were each defined to be "Obligors" and each Obligor agreed to guarantee, inter alia, the due and punctual payment of the "Secured Money".

7. "Secured Money" was defined in the LSG Deed so as, in effect, to include relevantly all money that any Obligor became liable to pay to Prime pursuant to the LSG Deed (including the guarantee).

8. Repayment of Secured Money was also secured by way of a registered mortgage over a strata unit in Hurstville, of which Ms Pypy is the registered proprietor and mortgagor.

9. On 20 November 2020, $415,000 was drawn down and thereafter certain repayments were made.

10. By March 2024, Cemerleng was in default in repaying amounts due under the LSG Deed. As at 7 March 2024, the amount owing under the LSG Deed (including interest at the Higher Rate, Default Administration Fees and other charges under the LSG Deed) was $380,231.62.

11. On 26 March 2024, Prime commenced the present proceedings seeking orders against Ms Pypy for possession of the Hurstville unit and costs.

12. On 14 May 2024, default judgment was entered.

13. On 31 July 2024, default judgment was set aside by consent. Directions were made for the filing of a defence and a reply to defence.

14. On 16 September 2024, having reached agreement to settle the proceedings, Prime, Cemerleng, Ms Hioe and Ms Pypy entered into the S&F Deed.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1954b5c450e6d25dd11f4d3e)

Disclaimer: Curated by HT Syndication.