ANZ Banking Group Ltd v Rodgers - [2004] QCA 186

SUPREME COURT OF QUEENSLAND

CITATION:

ANZ Banking Group Ltd v Rodgers & Anor [2004] QCA 186

PARTIES:

AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED ACN 005 357 522
(plaintiff/respondent)
v
STEPHEN ALEXANDER RODGERS AND ROSLYN RODGERS
(defendants/appellants)

FILE NO/S:

Appeal No 9193 of 2003
SC No 7655 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

28 May 2004

DELIVERED AT:

Brisbane

HEARING DATE:

28 April 2004

JUDGES:

de Jersey CJ, McMurdo P and Williams JA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal dismissed
2. The appellants are to pay the respondent’s costs of and incidental to the appeal to be assessed

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF THE APPELLATE COURT – WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES – GENERALLY – where the respondent bank, as mortgagee, successfully claimed an order for possesion of the appellants’ land – whether the trial judge erred in finding that the appellants signed their guarantees, a mortgage and mortgage debenture on 5 October 2001 – whether the trial judge erred in finding that there was no collateral agreement – whether the trial judge erred in failing to find that the appellants were led to believe that the respondent would accept $50,000 in order to remedy their company’s arrears

Devries v Australian National Railways Commission (1993) 177 CLR 472, cited
Fox v Percy (2003) 77 ALJR 989, cited
Water Board v Moustakas (1988) 180 CLR 491, cited

COUNSEL:

L J Nevison for the appellant
I R Perkins for the respondent

SOLICITORS:

Shand Taylor Lawyers for the appellant
Minter Ellison for the respondent

de JERSEY CJ: The respondent bank, as mortgagee, successfully claimed an order for possession of the appellants’ land. The mortgage secured the indebtedness of Rodgers Family Investments Pty Ltd (“the company”) to the respondent. That debt was also secured by deeds of guarantee and indemnity dated 5 October 2001, provided by the appellants to the respondent. The company failed to meet a demand of 8 May 2002 for the payment of a sum of $449,319 owing under three loan facilities. That led to claims against the appellants as guarantors, and judgment against them, respectively, in the amount of $394,121.10.

The respondent’s case

The respondent’s case at the trial was that the appellants’ execution of the guarantees and other documents was preceded by their accepting an offer contained in a letter dated 5 October 2001, which they signed in the presence of the respondent’s officer Cameron Blair. The resultant agreement provided that the respondent would furnish the company with financial accommodation amounting to $419,000, on condition the appellants provided the guarantees and mortgage, and the company a mortgage debenture. There was no issue about this, and it formed the basis of an alternative claim, should the court find the respondent not able to rely…

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 Rodgers

Details

AGLC: ANZ Banking Group Ltd v Rodgers [2004] QCA 186
Case: [2004] QCA 186
Decision Date: 28 May 2004

CaseChat Overview and Summary

In the case of ANZ Banking Group Ltd v Rodgers, the primary dispute centred on whether the appellants had signed certain financial documents on the specified date and whether there was any collateral agreement related to the payment of arrears. The case was heard in the Supreme Court of New South Wales. The ANZ Banking Group, acting as the mortgagee, sought an order for possession of the appellants' land due to alleged breaches of their financial obligations. The appellants contested the bank's claims, arguing that they had not signed the guarantees, mortgage, and mortgage debenture on the date asserted by the bank, and that there was a collateral agreement that the bank would accept a lesser payment to resolve the arrears.

The legal issues that the court needed to resolve were whether the trial judge had erred in finding that the appellants signed the documents on 5 October 2001, whether the trial judge erred in finding that there was no collateral agreement, and whether the trial judge erred in failing to acknowledge that the appellants were led to believe that the bank would accept $50,000 to remedy the company’s arrears. The court considered these issues in the context of the principles governing appellate review, particularly the deferential approach to the trial judge's findings of fact based on witness credibility.

The court concluded that the trial judge's findings were supported by the evidence and that there was no basis to interfere with the trial judge's assessment of the witnesses' credibility. The appellate court found no error in the trial judge's determinations regarding the signing of the documents, the absence of a collateral agreement, and the belief held by the appellants about the bank's acceptance of a lesser payment. Consequently, the appeal was dismissed, and the appellants were ordered to pay the respondent's costs of and incidental to the appeal.

Orders

Orders of the court

1. Appeal dismissed

2. The appellants are to pay the respondent’s costs of and incidental to the appeal to be assessed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	ANZ Banking Group Ltd v Rodgers & Anor [2004] QCA 186
PARTIES:	AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED ACN 005 357 522 (plaintiff/respondent) v STEPHEN ALEXANDER RODGERS AND ROSLYN RODGERS (defendants/appellants)
FILE NO/S:	Appeal No 9193 of 2003 SC No 7655 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	28 May 2004
DELIVERED AT:	Brisbane
HEARING DATE:	28 April 2004
JUDGES:	de Jersey CJ, McMurdo P and Williams JA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal dismissed 2. The appellants are to pay the respondent’s costs of and incidental to the appeal to be assessed
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF THE APPELLATE COURT – WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES – GENERALLY – where the respondent bank, as mortgagee, successfully claimed an order for possesion of the appellants’ land – whether the trial judge erred in finding that the appellants signed their guarantees, a mortgage and mortgage debenture on 5 October 2001 – whether the trial judge erred in finding that there was no collateral agreement – whether the trial judge erred in failing to find that the appellants were led to believe that the respondent would accept $50,000 in order to remedy their company’s arrears
Devries v Australian National Railways Commission (1993) 177 CLR 472, cited Fox v Percy (2003) 77 ALJR 989, cited Water Board v Moustakas (1988) 180 CLR 491, cited
COUNSEL:	L J Nevison for the appellant I R Perkins for the respondent
SOLICITORS:	Shand Taylor Lawyers for the appellant Minter Ellison for the respondent