ANZ Banking Group Ltd v Loftus - [2014] VSC 342

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
PRACTICE COURT

S CI 2013 02884

AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED (ACN 005 357 522)	Plaintiff
v
MICHAEL DAVID LOFTUS	Defendant

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JUDGE:	GINNANE J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 July 2014
DATE OF JUDGMENT:	29 July 2014
CASE MAY BE CITED AS:	ANZ Banking Group Ltd v Loftus
MEDIUM NEUTRAL CITATION:	[2014] VSC 342

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Appeal – Judgment of Associate Justice – Whether Court should receive further evidence – Supreme Court (General Civil Procedure) Rules2005 O 77 r 6.9(3)

Mortgage – Summary judgment application – Denial that defendant signed mortgage – Whether defence has real prospects of success – Whether matter should proceed to trial – Civil Procedure Act 2010 (Vic) ss 63 and 64.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G Moffatt	HWL Ebsworth Lawyers
For the Defendant	Mr P J Hayes and Mr J Silver	Victorian Bar Duty Barrister Scheme

HIS HONOUR:

The plaintiff (ANZ) sued the defendant (Michael Loftus) claiming possession of his property at South Morang, that includes the home in which he lives. It claims that he had mortgaged that property to it and breached the terms of the mortgage by not making the repayments owing. It also claimed the sum owing under the mortgage.

Mr Loftus filed a defence denying that he had signed the mortgage. The document that he initially filed in response to the statement of claim appears to have also contained a denial that his property was mortgaged to the ANZ, although it is difficult to comprehend.

On 2 April 2014, an Associate Justice granted the ANZ summary judgment in the following terms:

(1)The plaintiff recover (from) the Defendant possession of all that piece of land being Lot 2, on Plan of Subdivision 607016C and being the whole of the land contained in Certificate of Title Volume 11029 Folio 533 and known as Unit 2, 5 Briar Court, South Morang in the State of Victoria.
(2)The defendant pay the plaintiff the sum of $132,309.51.
(3)The defendant pay the plaintiff’s costs of the proceedings (including the costs of this application) on an indemnity basis.

Mr Loftus appeals against those orders and seeks to rely upon a subsequent affidavit that he swore on 21 May 2014 and which was not before the Associate Justice. The parties requested me to hear and determine the argument about the reception of the affidavit and the appeal concurrently.

ANZ’s case was based on a loan contract made on 7 October 2008 and executed by Mr Loftus which advanced moneys to him under a business loan and a business credit card facility. It contended that as part of those loans, his liability was secured by an instrument of mortgage over his property at South Morang.

Mr Loftus, in an amended defence, that he prepared, pleaded in respect of the mortgage:

3.1The defendant says that the document shown in the Titles Office search AF9935786 have been fraudulently…

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.

Continue reading ANZ Banking Group Ltd v Loftus

Details

AGLC: ANZ Banking Group Ltd v Loftus [2014] VSC 342
Case: [2014] VSC 342
Decision Date: 29 July 2014

CaseChat Overview and Summary

ANZ Banking Group Ltd sought summary judgment against Loftus in respect of a mortgage claim. Loftus denied signing the mortgage and claimed the mortgage was not properly registered. The matter was heard in the Supreme Court of Victoria. The primary legal issue was whether Loftus' defence had real prospects of success. The court also needed to determine whether the matter should proceed to trial or if summary judgment could be granted.

The court considered the statutory framework under the Civil Procedure Act 2010 (Vic) and the relevant rules in the Supreme Court (General Civil Procedure) Rules 2005. It examined whether Loftus' defence was viable and whether there was a triable issue. The court found that Loftus' defence had real prospects of success, primarily due to the lack of evidence regarding the signing of the mortgage. Additionally, the court noted that the matter involved questions of fact that were better suited to a trial. Therefore, the court declined to grant summary judgment.

The court ruled that the matter should proceed to trial to allow for the presentation and examination of evidence. It determined that the evidence required to resolve the issues could not be adequately addressed through a summary judgment application. The court's decision was influenced by the need to ensure a fair resolution of the factual disputes between the parties. The court's judgment was that the application for summary judgment was dismissed, and the matter was to proceed to trial.

Orders