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ANZ v Mio Amico Pty Ltd

ANZ v Mio Amico Pty Ltd

Case [2013] NSWSC 716 13 June 2013

Admissibility of Evidence

Mortgages & Security Interests

Property Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: ANZ v Mio Amico Pty Ltd [2013] NSWSC 716
Hearing dates: 4 June 2013
Decision date: 13 June 2013
Jurisdiction: Common Law
Before: Davies J
Decision:
1. Judgment for possession of the whole of the land described in Certificate of Title, Folio Identifier Lot 91 in Deposited Plan 1119204, the postal address of which is 35 Ross Street, Goulburn NSW 2580;
2. Judgment for the Plaintiff against the First and Second Defendants in the sum of $3,297,798.67.
3. Leave to the Plaintiff to issue a writ of possession to enforce the judgment.
4. Dismiss the Cross-Claim.
5. The Defendants are to pay the Plaintiff's costs of the proceedings.

Catchwords: REAL PROPERTY - possession of land - by mortgagee - defaults under loan facility - consideration of defence on undefended hearing - whether agreement to lend further funds - absence of complaint until enforcement commenced
PROCEDURE - adjournment - application by Defendants on first day of hearing - relevance of procedural history - lawyer ceasing to act - failure to obtain new lawyer - Defendants' desire to serve further evidence - inadequacy of evidence to justify adjournment.
Legislation Cited: Australian Securities And Investments Commission Act 2001 (Cth)
Civil Procedure Act 2005
Fair Trading Act 1987
Real Property Act 1900
Uniform Civil Procedure Rules
Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Dawson v Deputy Commissioner of Taxation (1984) 56 ALR 367
EG & H Nominees Pty Ltd v General Mutual Insurance Co Ltd (in liq) (1976) 50 ALJR 460
Kingsway Group Ltd (Formerly Known As Willis and Bowring Mortgage Investments Ltd) v Belramoul and Ors [2009] NSWSC 345
Short v Short [1960] 1 WLR 833
Squire v Rogers (1979) 27 ALR 330
Watson v Watson (1968) 70 SR (NSW) 203
Category: Principal judgment
Parties: Australia and New Zealand Banking Group Ltd (Plaintiff)
Mio Amico Pty Ltd (First Defendant)
Ollie Italiano Olivieri (Second Defendant)
Representation: Counsel:
D L Cook (Plaintiff)
No appearances re substantive hearing (First & Second Defendants)
Solicitors:
Norton Rose Fulbright Australia (Plaintiff)
R Koffel (Solicitor for the Defendant on the adjournment application only)

File Number(s): 2010/27760

Judgment

In these proceedings the Plaintiff seeks possession of land at 35 Ross Street, Goulburn from the First Defendant and judgment for a monetary sum against the First Defendant as borrower and against the Second Defendant as guarantor of the loan.

The loan and the default

On 13 September 2007 the Plaintiff sent a letter of offer to the Second Defendant in his capacity as the Director of the First Defendant. The Bank offered to lend the First Defendant a sum of $1,740,000 by way of a commercial bill with fixed interest. The purpose of the loan was said to be to assist in the purchase of a commercial property at Goulburn. The security for the loan was to be a guarantee and indemnity from the Second Defendant in respect 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.

Continue reading ANZ v Mio Amico Pty Ltd

Details

AGLC: ANZ v Mio Amico Pty Ltd [2013] NSWSC 716
Case: [2013] NSWSC 716
Decision Date: 13 June 2013

CaseChat Overview and Summary

ANZ Bank Ltd brought an action against Mio Amico Pty Ltd, seeking possession of land and other relief arising from defaults under a loan facility. The case was heard in the Federal Circuit Court of Australia. The dispute centred on whether Mio Amico Pty Ltd was in default under the loan agreement and, if so, whether ANZ Bank Ltd was entitled to possession of the mortgaged property. The court was also required to consider whether there was an agreement to lend further funds and whether the absence of complaint by Mio Amico Pty Ltd until enforcement proceedings commenced was relevant.

The court addressed the issue of whether there was an agreement to lend further funds, examining the evidence presented by the parties. The court noted that Mio Amico Pty Ltd had not raised any objection to the loan terms until enforcement actions were initiated, which it considered in the context of the overall agreement. The court also assessed the relevance of procedural history, including the adjournment application made by Mio Amico Pty Ltd on the first day of the hearing, and the circumstances surrounding the lawyer ceasing to act and the failure to obtain a new lawyer. The court concluded that the procedural history and the timing of any complaints were relevant to the case.

In its reasoning, the court held that the evidence did not support an agreement to lend further funds. The court further found that the absence of complaint until enforcement proceedings commenced was a significant factor. The adjournment application was dismissed as the evidence Mio Amico Pty Ltd wished to present was deemed inadequate to justify an adjournment. The court found in favour of ANZ Bank Ltd, granting it possession of the land and other relief sought.

The court ordered that Mio Amico Pty Ltd vacate the premises and that ANZ Bank Ltd recover possession of the mortgaged property. The court also awarded costs to ANZ Bank Ltd, reflecting the procedural mismanagement by Mio Amico Pty Ltd.

Orders