Hargraves Secured Investments Ltd v Sharpe [2016] NSWSC 671

Supreme Court New South Wales

Medium Neutral Citation: Hargraves Secured Investments Ltd v Sharpe [2016] NSWSC 671 Hearing dates: On the papers Date of orders: 26 May 2016 Decision date: 26 May 2016 Before: Garling J Decision: (1) Order that the Notice of Motion filed by Mr Sharpe on 20 January 2016 be, and hereby is, dismissed. Catchwords: PROCEDURE – civil – judgments and orders – slip rule – where leave to list Notice of Motion for hearing was refused but Notice of Motion not formally dismissed – where effect of that order is to stay the execution of an order of the Deputy Registrar – Mistake corrected on the Court's own motion Legislation Cited: Uniform Civil Procedure Rules 2005 Cases Cited: Sharpe v Hargraves Secured Investments Ltd [2013] NSWCA 288 Hargraves Secured Investments Ltd v Sharpe [2013] NSWSC 539 Hargraves Secured Investments Ltd v Sharpe [2013] NSWSC 1456 Hargraves Secured Investments Ltd v Sharpe [2016] NSWSC 26 Texts Cited: Not Applicable Category: Procedural and other rulings Parties: Hargraves Secured Investments Ltd (P) David George Sharpe (D) Representation: Solicitors: Hargraves Solicitors (P) Stephen Wawn, Solicitor (D) File Number(s): 2012/41764 Publication restriction: Not Applicable

Judgment 1. In June 2012, after a significant period of dispute, Hargraves Secured Investments Ltd ("Hargraves Secured Investments") entered into a Deed of Settlement with Mr David Sharpe, settling of all of the disputes between them. 2. As I have previously recorded, an Appendix to that Deed was a Consent Judgment dated 6 June 2012, which gave Hargraves Secured Investments a money judgment and a judgment for possession of various properties. At that time, the amount owing by Mr Sharpe to Hargraves Secured Investments was almost $1.87M. 3. Since that time, Mr Sharpe has unsuccessfully brought a series of Notices of Motion, all of which have been dismissed, some with orders for costs. None of the orders for costs have been complied with. 4. On 21 August 2013, Adams J ordered that, leaving aside any application for leave to appeal to the Court of Appeal in relation to the principal judgment of Harrison J of 13 May 2013 (Hargraves Secured Investments Ltd v Sharpe [2013] NSWSC 539), no application brought by Mr Sharpe in relation to the proceedings against him was to be listed for hearing without leave first being granted by a Judge of the Court. Adams J ordered that the grant of such leave would be determined on the papers: see Hargraves Secured Investments Ltd v Sharpe [2013] NSWSC 1456. 5. On 23 October 2013, the Court of Appeal refused to grant Mr Sharpe leave to appeal against the judgment of Harrison J of 13 may 2013: Sharpe v Hargraves Secured Investments Ltd [2013] NSWCA 288. 6. On 20 January 2016, Mr Sharpe filed a further Notice of Motion. On 3 February 2016, I refused to grant leave to list the Notice of Motion for hearing: see Hargraves Secured Investments Ltd v Sharpe [2016] NSWSC 26. 7. The substance of that matter was as follows: 1. On 6 January 2016, Mr Sharpe lodged by way of a Notice of Motion in the proceedings, an application to pay the judgment debt which he owed to Hargraves Secured Investments by instalments. He sought to pay the existing debt by way of instalments of $25,000 each fortnight commencing on 21 January 2016. 2. The Financial Statement annexed to the Notice of Motion noted that Mr Sharpe was in receipt of an average weekly income of $900, from which income he estimated his basic living expenses to amount to $420 per week. His Financial Statement did not disclose the existence of any assets which could readily be used to support the payment which he proposed to make. 3. On 6 January 2016, the Deputy Registrar of the Court refused the application made by Mr Sharpe because it was unlikely that he would be able to pay a proposed fortnightly instalment of $25,000 on a weekly income of $900. 4. On 20 January 2016, Mr Sharpe lodged a Notice of Motion objecting to the order of the Deputy Registrar of 6 January 2016 refusing his instalment application. 5. In my judgment of 3 February 2016, I concluded that the Notice of Motion objecting to the order refusing the instalment application, which was unsupported by any material demonstrating any financial capacity to make the payments suggested, had no prospects of success. Accordingly, I refused leave to list the Notice of Motion for hearing. 1. It has been drawn to my attention that because the Notice of Motion of 20 January 2016 has not been finally dealt with, Mr Sharpe asserts that there is a stay on the judgment which Hargraves Secured Investments obtained against him: see r 37.5 of the Uniform Civil Procedure Rules 2005 ("UCPR"). 2. Hargraves Secured Investments has drawn the Court's attention to the fact that the continuation of the stay is an unintended consequence of what was, in substance and effect, a dismissal of the Notice of Motion of Mr Sharpe on 3 February 2016. 3. If that is the way in which the judgment of the Court is to be interpreted, then it is clear that there has been an omission on the part of the Court to make an order dismissing the Notice of Motion so as to give substantive effect to the Court's findings. 4. Pursuant to r 36.17 of the UCPR, generally known as the "slip rule", the Court, of its own motion at any time, is entitled to correct an error or mistake with orders that it has made. 5. This judgment is issued pursuant to that power of the Court under r 36.13 of the UCPR. 6. In consequence of the orders I make below, any stay on the orders of the Deputy Registrar is lifted, and there is no legal impediment to Hargraves Secured Investments taking enforcement action with respect to the property known as "Campbells Hill" at 485 Rimbanda Road, Kentucky, NSW in accordance with the Consent Judgment dated 6 June 2012, provided that all necessary procedural requirements have been met.

Orders 1. In addition to the order of the Court made on 3 February 2016, refusing to grant leave to list the Notice of Motion filed by Mr Sharpe on 20 January 2016 for hearing, the Court makes the following order: 1. Order that the Notice of Motion filed by Mr Sharpe on 20 January 2016 be, and hereby is, dismissed.

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