FEDERAL COURT OF AUSTRALIA

National Australia Bank Limited v Batra [2009] FCA 463

NATIONAL AUSTRALIA BANK LIMITED (ACN 004 044 937) v MR AKSHAY BATRA, NEW SOUTH WALES TREASURY CORPORATION  (065159140), QUEENSLAND TREASURY CORPORATION (065159220), WESTERN AUSTRALIAN TREASURY CORPORATION (065159686), NORTHERN TERRITORY TREASURY CORPORATION (074494705), SOUTH AUSTRALIAN GOVERNMENT FINANCING AUTHORITY (065159284), RAJUMA PTY LTD (ACN 107 738 018) and MR RAJESH NARAD

VID 999 of 2007

GRAY J

22 APRIL 2009

MELBOURNE

THE COURT ORDERS THAT judgment be entered for the plaintiff against the seventh and eighth defendants in the sum of $530,000 plus costs fixed at $1,500.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     On 23 February 2009, I had before me a motion that judgment be entered against the first, seventh and eighth defendants to this proceeding.  The motion was by notice of motion filed on 16 February 2009.  The basis of the motion for judgment is that, on 28 July 2008, the parties entered into a deed of settlement of the proceeding, consequent upon a court-annexed mediation.

2                     The terms of the deed of settlement are confidential, but it is necessary to reveal some of them.  By cl 2.1 of the deed of settlement, the balance of the settlement amount became due and payable at 4.00 pm on 22 December 2008.  The sum in question is $530,000.  Clause 2.2 provides, in effect, that, if there be a failure to pay the settlement amount, the plaintiff is at liberty to enter judgment against the first, seventh and eighth defendants for an amount equal to the balance outstanding, plus $1,500 in respect of costs.  By cl 2.3, each of the relevant defendants irrevocably consented to the entry of judgment in accordance with cl 2.2.  By cl 9.1 of the deed, time is of the essence in respect of an obligation of the defendants to pay money.

3                     The sum of 530,000 was not paid.  One of the defendants obliged to pay it was the first defendant.  On the original hearing of the motion for judgment, I adjourned the motion until today and made certain orders that, in the event that the first defendant failed to pay the costs of the adjournment, or any part of the amount due and owing, judgment be entered against the first defendant for those amounts plus the agreed costs.  By para 6 of my order of 23 February, the entry of judgment against the first defendant was not to be taken to be an election by the plaintiff not to seek judgment against the seventh and eighth defendants.  By order of Registrar Caporale on 27 March 2009, judgment was entered for the plaintiff against the first defendant for the sum of $530,000 and the agreed costs fixed at $1,500.

4                     The adjourned motion comes before me today, therefore, as a motion for the entry of judgment pursuant to the deed of settlement against the seventh and eighth defendants.  Counsel appearing for the seventh and eighth defendants today has sought a further adjournment of the motion in order to enable certain properties to be sold, and the proceeds gathered to pay the judgment sum.  Alternatively, counsel for the seventh and eighth defendants has submitted that, if judgment be entered, its execution should be stayed for a similar reason.

5                     I am not inclined to accept either suggestion.  The point of the previous adjournment was that properties were to be sold and the proceeds gathered and applied to the payment of the judgment debt.  That did not happen.  It still has not happened.  I am told that the auction of one property is imminent.  There is no certainty that any of the properties concerned will realise an amount sufficient to discharge the debt under the terms of settlement.  The plaintiff has waited long enough for the agreed sum of money to be paid and ought not to have to wait longer.

6                     There seems to be little point in staying execution of the judgment.  If, in fact, properties are sold in the near future at prices sufficient to enable the debt to be discharged, then it will not be in the plaintiff’s interest to execute the judgment speedily.  If, on the other hand, there is delay in selling, the plaintiff ought to be in a position to execute its judgment by whatever means it sees fit.

7                     Counsel for the seventh and eighth defendants also argued that the entry of judgment against the seventh and eighth defendants might jeopardise the continued conduct by them of their finance-broking business.  It was not made clear whether the entry of judgment would constitute any legal barrier to the continued conduct of the business, or whether the seventh and eighth defendants feared loss of reputation.  In any event, the seventh and eighth defendants agreed to the entry of judgment in circumstances that have occurred, and can hardly complain if they suffer the consequences of their agreement.

8                     Accordingly, I order that judgment be entered for the plaintiff against the seventh and eighth defendants in the sum of $530,000 plus costs fixed at $1,500. 

Associate:

Dated:         8 May 2009