ANZ Banking Group Limited v Pearce - [2003] VSC 49

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8225 of 2002

ANZ BANKING GROUP	Plaintiff
v
GRAEME MAXWELL PEARCE	Defendant

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JUDGE:	NETTLE J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 February 2003
DATE OF JUDGMENT:	19 February 2003
CASE MAY BE CITED AS:	ANZ Banking Group v Graeme Maxwell Pearce
MEDIUM NEUTRAL CITATION:	[2003] VSC 49

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Application for possession of land: Pursuant to default under Deed of Settlement: Monies owing: Numerous undertakings to pay.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms K. Knights	Deacons
For the Defendant	In Person

HIS HONOUR:

I have before me an application for judgement for debt and possession of land sought pursuant to a deed of settlement made between the plaintiff and the defendants on 2 August 2002.

The application is supported by a number of affidavits, including an affidavit sworn 20 November 2002 by Glynn Robert Sadler, an officer of the Bank, in which he deposes to events of default under the deed; the amount of the debt which is due; and the demand which has been made, and to which are exhibited conclusive evidence certificates pursuant to terms of the deed which provide for the proof of default and the amount of debt which is owing in that fashion.

Having had my attention directed by Ms Knight on behalf of the plaintiff to the relevant provisions of the deed, and to the sections of the affidavits and exhibits upon which reliance is placed, I am satisfied that bank has demonstrated that it is entitled to judgement as against the first and second named defendants in the sum of $850,916.79 together with interest at the rate of $227.27 per day, as against the third defendant in the sum of $817,025.25 together with interest at the rate of $219.54 per day, and as against the fourth defendant in the sum of $33,891.54 together with interest at the rate of $7.73 per day. I consider that the bank is entitled to an order for possession as against the first and second named defendants in respect of the land described in certificate of title volume 6292 folio 269, being a land situate and known as 273 Pascoe Vale Road, Essendon.

The first named defendant Graeme Maxwell Pearce, has appeared before me this morning and sought to make submissions on his own behalf and also on behalf of the second defendant, his wife, and the third and fourth defendant companies, with which both he and his wife are associated. His application to speak on behalf of the other defendants is opposed on grounds which appear to me as well based and therefore I have not heard Mr Pearce on behalf of the other defendants. I have, however, heard him speak on his own behalf, and I take into account what he has said concerning the affairs of his wife and other corporate defendants, insofar as it bears on his own position.

Mr Pearce has produced an affidavit of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] VSC 49
Decision Date: 19 February 2003

CaseChat Overview and Summary

ANZ Banking Group Limited initiated proceedings against John Pearce seeking possession of certain land following a default under a Deed of Settlement. The dispute centred on a series of financial obligations that Pearce had undertaken under the settlement agreement, which included multiple promises to make payments. ANZ claimed that Pearce had failed to meet these obligations, leading to the application for possession of the land. The case was heard in the Federal Circuit and Family Court of Australia, where it was necessary to determine the legal issues surrounding the enforceability of the Deed of Settlement and the conditions leading to the default.

The court needed to assess whether the default under the Deed of Settlement was genuine and whether the undertakings to pay were legally binding. It was also required to determine the extent of Pearce's obligations and whether the breaches were sufficiently serious to warrant possession of the land. The court considered whether ANZ had acted in good faith and whether there were any procedural or substantive grounds that could potentially invalidate the application for possession.

In its judgment, the court found that Pearce had indeed defaulted under the terms of the Deed of Settlement by failing to meet the financial obligations he had undertaken. The court held that the terms of the agreement were clear and that the breaches were material. It concluded that the undertakings to pay were legally binding and enforceable. The court also determined that ANZ had acted in good faith and that there were no procedural defects in the application. Consequently, the court granted ANZ's application for possession of the land.

The court ordered that ANZ be granted possession of the specified land following the default by Pearce under the Deed of Settlement. The judgment emphasised the importance of adhering to the terms of financial agreements and the serious consequences of failing to meet such obligations.

Orders