Kathleen Jeanne Furlong and Anor v Wise & Young Pty Ltd and Ors [2017] NSWSC 829 (8 September 2017)

Last Updated: 8 September 2017

Supreme Court New South Wales

Case Name:	Kathleen Jeanne Furlong and Anor v Wise & Young Pty Ltd and Ors
Medium Neutral Citation:	[2017] NSWSC 829
Hearing Date(s):	On the papers
Decision Date:	8 September 2017
Jurisdiction:	Equity
Before:	Sackar J
Decision:	See para [17]
Category:	Procedural and other rulings
Parties:	Kathleen Jeanne Furlong (first plaintiff) Mark Andrew Leishman (second plaintiff) Wise & Young Pty Limited (first defendant) Defined Properties Investment Pty Limited (second defendant) Wyse & Young International Pty Limited (third defendant)
Representation:	Counsel: M Auld (Plaintiffs) No representation (Defendants) Solicitors: K & M Leishman (Plaintiffs) D Dimitriou, self-represented (Defendants)
File Number(s):	2015/326698

JUDGMENT

1. I gave judgment in these proceedings on 1 December 2016. More recently I have sent an aspect of that judgment to a Referee who is currently undertaking a task which, when completed, will enable the proceedings before me to be finalised.
2. The factual matters the subject of the proceedings are set out in my judgment.
3. A property which featured in that judgment was a property at 24 Memorial Drive, The Hill, Newcastle owned by Ms Kathleen Furlong and her former husband Mr Mark Leishman.
4. The property had previously been the subject of caveats lodged by Scottish Pacific Business Finance Pty Ltd (SPBF) which had loaned certain monies, in particular the sum of $284,456.82.
5. The monies had been lent pursuant to a Deed of Charge and personal guarantee, which guarantees were provided by Ms Furlong and Mr Mark Leishman. SPBF lodged caveats over the property in connection with that transaction.
6. On 31 March 2014 Mr Gil Leishman took an assignment of the securities from SPBF by making the payment of $284,456.82. As a result the SPBF caveats were withdrawn and Mr Gil Leishman lodged his own caveat (AJ817227).
7. There were a number of documents attached to Mr Leishman’s affidavit of 10 November 2015 which was read in proceedings before me. First, the original Deed of Charge dated 10 February 2011. The guarantors pursuant to that charge were Mr Mark Leishman, Mr Gil Leishman and Tablam Pty Limited. Also attached was a Deed of Satisfaction of Debt between SPBF, Mr Gil Leishman, Ms Kathleen Furlong and Mr Mark Leishman. The Deed records Mr Gil Leishman and Ms Kathleen Leishman had agreed to pay out the debt in full. Mr Leishman asserted that is in fact what happened which led in turn to the lodgement of the caveat at least on his part.
8. Further in Mr Leishman’s affidavit of 10 November 2015 he asserted that he not only advanced the sum to discharge the SPBF debt but over time had advanced some $2 million between the years 2008 and 2015 on behalf of Ms Furlong and Mr Mark Leishman.
9. There was no cross examination of Mr Gil Leishman on the topic before me during the proceedings. Indeed the caveat barely rated a mention in the proceedings. Further no attempt was made to make any submissions about the authenticity and/or the consequences of the Deed of Satisfaction of Debt. Prima facie these documents are authentic on their face and would appear to support the assertion that the SPBF debt was discharged at least by Mr Gil Leishman. As a result of the transaction, he would again have a caveatable interest.
10. Mr Dimitriou made reference in passing to the caveat lodged by Mr Gil Leishman in his affidavit of 10 November 2015 at [4], his affidavit of 13 November 2015 at [6] – [13], his affidavit of 25 November 2015 at [6] and [14] and his affidavit of 4 December 2015 at [12], [14], [15] and [15A].
11. In any event in the proceedings before me, a reference is made to the caveat in the amended defence dated 15 August 2016 handed up in court on 17 August 2016. Again in the amended cross claim dated 15 August 2016 and handed up in court on 17 August 2016 certain relief was claimed to the effect that no money was owing pursuant to the caveat and that the caveat did not validly protect any interest and further an order was sought that it be removed. Otherwise there was no cause of action pleaded nor was there any attempt to plead any material facts supporting the various claims for relief.
12. In their pleadings the Leishman parties admitted lodging the caveat but denied the allegations otherwise.
13. The caveat was not otherwise mentioned in the proceedings nor was there any cross examination for example of Mr Gil Leishman (as I have already indicated) on the topic. No argument was advanced orally in final submissions in relation to the caveat. I should mention in passing the representation of the Dimitriou parties was more than a little haphazard. Mr Dimitriou appeared for much of the time. However Mr Trevor Hall, solicitor, appeared for some of the time.
14. For whatever reason apart from what I understood was bare assertion, no serious basis or substantive argument was ever advanced as to why the caveat was bad in law. Further no argument was advanced as to why the Deed of Change or Deed of Satisfaction of Debt did not provide a caveatable interest, which in my view, prima facie, it does.
15. From time to time since I have delivered the judgment and during a number of directions hearings Mr Dimitriou has raised the status of the caveat and has enquired why the judgment did not deal with the issue. I invited submissions on the status of the matter. I received submissions from Mr Auld of Counsel for the Leishman parties on 28 March 2017, but as far as I can tell I have never received any written submissions from Mr Dimitriou.
16. Insofar as the claim was vaguely referred to in pleadings, but not in argument it was at least technically before me in the trial. Notwithstanding the cursory way in which the matter was dealt with, in my view it is appropriate, albeit belatedly, that the claims for relief in respect of the caveat be dismissed.
17. When the Referee completes his task I will have to consider what, if any orders are made against the Dimitriou parties for compensation. At that point there is to be balanced against the $1 million advanced to discharge the CBA loan which I have found was advanced by the Dimitriou interests, any monies which those interests may be obliged to pay as a result of the breaches of trust I found existed. There may or may not at that time be an appropriate basis for challenging the particular caveat afresh. That is a matter for another day. What I have said should not be understood as indicating on my part that there will be a legitimate basis to challenge that caveat but at least it is open in my mind as a theoretical possibility.