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ANZ Banking Group Ltd v Panuccio

ANZ Banking Group Ltd v Panuccio

Case [2012] VSC 159 17 May 2012

Mortgages & Security Interests

Equitable Estoppel

Breach of Contract

Finance & Banking Law

Property Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 7824 of 2009

AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED (ABN 11 005 357 522)	Plaintiff
v
FILLIPO PANUCCIO (ALSO KNOWN AS PHIL PANUCCIO AND PHILIP PANUCCIO)	First Defendant
and
MARIA PANUCCIO	Second Defendant

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JUDGE:	McMILLAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 March 2012
DATE OF JUDGMENT:	17 May 2012
CASE MAY BE CITED AS:	ANZ Banking Group Ltd v Panuccio & Anor
MEDIUM NEUTRAL CITATION:	[2012] VSC 159

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MORTGAGES AND SECURITIES – Default – Claim for possession of properties and for moneys due under loan facilities and guarantee and indemnity – Construction of terms of loan facilities to determine whether all moneys securities – Whether equitable mortgage exists over second defendant’s interest in property – Whether second defendant estopped from denying her interest mortgaged.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B Carew	Norton Rose Australia
For the Defendants	No appearance	No appearance

HER HONOUR:

Introduction

This proceeding concerns a loan given by the plaintiff (“the Bank”) to the defendants, which is now in default. The loan was secured by four mortgages granted by the defendants, as well as being personally guaranteed by them.

The Bank claims that it is entitled to possession of the four properties which are the subject of the mortgages and to judgment for sums owing by the defendants pursuant to a guarantee and indemnity and the four mortgages.

The Bank also claims that it has an equitable mortgage over the second defendant’s one quarter interest in one of the properties, or, in the alternative, that the second defendant is estopped from denying that her interest in the relevant property is subject to the Bank’s interest.

Procedural Background

By an amended statement of claim dated 15 March 2010, the Bank seeks:

(a) Against both defendants, payment of the sum of $2,944,479.11, plus accrued interest on that sum to the date of payment.

(b) Against the first defendant (“Mr Panuccio”), possession of the properties situated at and known as:

(i) Lot 1 Ranfurly Way, Mildura (“the Lot 1 Ranfurly Way Property”).

(ii) 217 and 231 Ranfurly Way, Mildura (“the Part Lot 6 and 3 Ranfurly Way Property”).

(iii) Lot 26 Fifteenth Street, Irymple (“the Fifteenth Street Property”).

(iv) 111 Commercial Street, Merbein (“the Commercial Street Property”).

(c) Against the second defendant (“Mrs Panuccio”):

(i) Possession of the Lot 1 Ranfurly Way Property.

(ii) A declaration that, as at 13 January 2006, Mrs Panuccio’s interest in the Commercial Street Property was charged to the Bank with repayment of the amount owed by Mrs Panuccio to the Bank pursuant to a guarantee and indemnity dated 13 January 2006 and given by Mr Panuccio and Mrs Panuccio to the Bank on account of P&M Panuccio Pty Ltd (ACN 006 759 235) (in its own capacity and as trustee for the P&M Panuccio Family Trust) (receivers and managers appointed).

(iii) A declaration that, as at 13 January 2006, the Bank…

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 Panuccio

Details

AGLC: ANZ Banking Group Ltd v Panuccio [2012] VSC 159
Case: [2012] VSC 159
Decision Date: 17 May 2012

CaseChat Overview and Summary

ANZ Banking Group Ltd brought an action against the Panuccios, seeking possession of properties and payment of amounts due under loan facilities. The dispute arose from a series of loan agreements and guarantees involving the parties. The court was required to determine whether the security provided by the defendants covered all monies due under the loan facilities, whether an equitable mortgage existed over the second defendant's interest in one of the properties, and whether the second defendant was estopped from denying that her interest was mortgaged.

The court examined the terms of the loan facilities and the nature of the security provided. It found that the security was not absolute and did not cover all monies due under the facilities. The court also considered whether an equitable mortgage existed over the second defendant's interest in one of the properties. It held that there was no equitable mortgage as the second defendant had not intended to create a charge over her interest in the property. However, the court found that the second defendant was estopped from denying that her interest was mortgaged, as she had represented to the bank that it was.

The court ordered that ANZ Banking Group Ltd recover possession of the properties and payment of the amounts due under the loan facilities. It also found that the second defendant was estopped from denying that her interest in one of the properties was mortgaged. The final orders reflected these findings and provided for the enforcement of the judgment against the defendants.

Orders