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Bendigo and Adelaide Bank Ltd v Howard

Bendigo and Adelaide Bank Ltd v Howard

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Case Copied 28 March 2018 67 min read

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Supreme Court

New South Wales

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Medium Neutral Citation: Bendigo and Adelaide Bank Ltd v Howard [2018] NSWSC 383
Hearing dates: 1 March 2018
Date of orders: 28 March 2018
Decision date: 28 March 2018
Jurisdiction: Common Law
Before: Davies J
Decision:
(1) Summons dismissed.
(2) The plaintiff is to pay the defendant’s costs.
Catchwords:
APPEALS - appeals to the Court – appeal from the Local Court – appeal as of right – whether grounds of appeal from decision of magistrate disclosed an error of law – plaintiff did not seek leave to appeal on grounds disclosing mixed questions of fact and law –
Investment scheme – nomination of lender to fund investment – whether defendant nominated lender who purported to assign loan ultimately to plaintiff - whether the lender nominated by the defendant in relevant documents was a misnomer – whether a question of law – plaintiff put to proof of advance of funds to defendant – whether a finding by magistrate that no funds were advanced was a question of law – whether inferences from documents concerning advance of funds and assignment was a question of law – whether findings that loan not assigned was a question of law

CONTRACTS – rectification – intention ––whether nomination of lender warranted rectification by construction as a result of a misnomer - not plain to all concerned with the relevant document that the defendant actually intended to borrow from the lender subsequently nominated by his duly appointed attorney
CONTRACTS – construction – interpretation – whether objective intention of defendant as to identity of lender was uncertain – whether uncertainty could be overcome by a valid exercise of the power of an attorney appointed by the defendant – lender as principal was fixed with knowledge of agent that it lacked power under power of attorney to nominate the lender
Legislation Cited: Conveyancing Act 1912 (NSW) s 12
Corporations Act 2001 (Cth) s 286
Local Court Act 2007 (NSW) ss 39, 40
Uniform Civil Procedure Rules 2005 (NSW) r 50.11
Cases Cited: ABL Custodian Services Pty Ltd v Kunz [2016] SADC 145
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Australian Gas Light Co v The Valuer-General (1940) 40 SR (NSW) 126
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Bonette v Woolworths Limited (1937) SR (NSW) 142
Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640
Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498; [2012] HCA 7
Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155
Holloway v McFeeters (1956) 94 CLR 470
Hope v Bathurst City Council (1980) 144 CLR 1
International Leasing Corporation Ltd v Aiken [1967] 2 NSWR 427
Jennings v Credit Corp Australia Pty Ltd (2000) 48 NSWLR 709; [2000] NSWSC 210
Jones v Canavan [1972] 2 NSWLR 236
Long Leys Co Pty Ltd v Silkdale Pty Ltd (1991) 5 BPR 11,512
New South Wales Land and Housing Corporation v Australia and New Zealand Banking Group Limited…

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: [2018] NSWSC 383
Decision Date: 28 March 2018

CaseChat Overview and Summary

The appeal in Bendigo and Adelaide Bank Ltd v Howard was heard by the Local Court, and concerns a dispute about an investment scheme. The plaintiff, Bendigo and Adelaide Bank Ltd, alleged that the defendant, Howard, had nominated a lender who purported to assign a loan to the plaintiff. The plaintiff argued that the lender named by the defendant was a misnomer and that the defendant had actually intended to borrow from a different lender. The defendant contended that the lender nominated in the relevant documents was not a misnomer and that no funds were advanced to him by the lender. The plaintiff claimed that the magistrate had erred in finding that no funds were advanced and that the loan was not assigned.
The court was required to decide several legal issues. Firstly, whether the grounds of appeal disclosed an error of law. Secondly, whether the misnomer in the nomination of the lender warranted rectification. Thirdly, whether the objective intention of the defendant as to the identity of the lender was uncertain and could be overcome by a valid exercise of the power of an attorney. Fourthly, whether the findings that the loan was not assigned were questions of law.
The court found that the grounds of appeal did not disclose an error of law. The court held that the misnomer in the nomination of the lender did not warrant rectification as it was not plain to all concerned with the relevant document that the defendant intended to borrow from the lender subsequently nominated by his attorney. The court also found that the objective intention of the defendant as to the identity of the lender was uncertain, but this uncertainty could not be overcome by a valid exercise of the power of an attorney. The court concluded that the findings that the loan was not assigned were questions of fact, not law. The appeal was dismissed, and the decision of the magistrate was upheld.
The final orders of the court were that the appeal be dismissed and that the decision of the magistrate be upheld. The plaintiff was not entitled to any relief in respect of the investment scheme, and the defendant was not required to assign the loan to the plaintiff. The court's decision clarifies the legal principles relating to misnomers, rectification, and the exercise of powers of attorney in the context of investment schemes.

Orders