Bonanno v Finamore

Case [2022] NSWCA 276


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Bonanno v Finamore [2022] NSWCA 276
Hearing dates: 25 October 2022
Date of orders: 20 December 2022
Decision date: 20 December 2022
Before: Ward P at [1];
Macfarlan JA at [2];
Basten AJA at [55]
Decision:

(1) Grant leave to appeal;

(2) Dismiss the appeal with costs.

Catchwords:

MORTGAGES AND SECURITIES — whether Deed recorded a transaction that was in substance a mortgage — whether obligation to transfer interest in property was a collateral advantage — unconscionability of obligation — Kreglinger (G&C) v New Patagonia Meat and Cold Storage Company Ltd [1914] AC 25 considered — Lord Parker’s three propositions

Legislation Cited:

Real Property Act 1900 (NSW), s 57

Cases Cited:

Australian Securities and Investments Commission v Kobelt (2019) 267 CLR 1; [2019] HCA 18

Epic Feast Ltd v Mawson KLM Holdings Pty Ltd (in liq) (1998) 71 SASR 161; [1998] SASC 6616

Gurfinkelv Bentley Pty Ltd (1966) 116 CLR 98; [1966] HCA 75

Handevel Pty Ltd v Comptroller of Stamps (Vic) (1985) 157 CLR 177; [1985] HCA 73

House v The King (1936) 55 CLR 499; [1936] HCA 40

Kreglinger (G & C) v New Patagonia Meat and Cold Storage Company Ltd [1914] AC 25

Lift Capital Partners Pty Ltd (in liq) v Merrill Lynch International (2009) 73 NSWLR 404; [2009] NSWSC 7

Waller v Hargraves Secured Investments Ltd (2012) 245 CLR 311; [2012] HCA 4

Westfield Holdings Ltd v Australian CapitalTelevision Pty Ltd (1992) 32 NSWLR 194

Texts Cited:

B Edgeworth, Butt’sLand Law (Law Book Co, 7th ed, 2017)

JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies (5th ed, 2015, LexisNexis)

K and SF Gray, Elements of Land Law (OUP, 5th ed, 2009)

Category:Principal judgment
Parties: Salvatore Antonio Bonanno (Appellant)
Nicola Finamore (First Respondent)
Weisen Zhou (Second Respondent)
Representation:

Counsel:
G Foster (Appellant)
S Aspinall / D Woods (Respondent)

Solicitors:
Phillip A Wilkins & Associates (Appellant)
LegalVision (Respondent)
File Number(s): 2022/186533; 2022/254111
 Decision under appeal 
Court or tribunal:
Supreme Court
Jurisdiction:
Equity
Citation:

[2021] NSWSC 1558

[2022] NSWSC 641

Date of Decision:
1 December 2021
23 May 2022
Before:
Robb J
File Number(s):
2015/228434

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 25 February 2011 Mr Nicola Finamore and Ms Weisen Zhou (the present respondents) entered into a Deed with Mr Salvatore Bonanno (the present appellant). Mr Finamore and Ms Zhou were the registered proprietors of a property that was being used as a boarding house.

The operative provisions of the Deed provided, inter alia, that in consideration of Mr Bonanno paying $130,000 to Mr Finamore and Ms Zhou, they would transfer one-third of their interest and title in the property to Mr Bonanno. The Deed also provided that, in the event the property was sold, the parties agreed that Mr Bonanno would receive $130,000 plus one-third of the remaining net proceeds of…

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AGLC
Bonanno v Finamore [2022] NSWCA 276
Case
[2022] NSWCA 276
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute between Bonanno and Finamore regarding a Deed that recorded a transaction involving an interest in property. The primary legal question before the Court of Appeal of New South Wales was whether the Deed, on its face, constituted a mortgage, or whether an obligation to transfer an interest in property was an unconscionable collateral advantage.

The Court was required to determine the substantive nature of the transaction recorded in the Deed. Specifically, it had to consider whether the obligation to transfer an interest in property was an integral part of a mortgage transaction, or if it represented an unconscionable collateral advantage that could be severed from the primary obligation. The Court's analysis was guided by the principles established in *Kreglinger (G&C) v New Patagonia Meat and Cold Storage Company Ltd* [1914] AC 25, particularly Lord Parker’s three propositions concerning the nature of mortgages and collateral advantages.

The Court reasoned that the Deed did not, in substance, create a mortgage. It found that the obligation to transfer the interest in property was not a clog on the equity of redemption, nor was it an unconscionable collateral advantage. The Court applied the principles from *Kreglinger* to conclude that the transaction was not a mortgage and that the collateral obligation was valid. Consequently, the Court granted leave to appeal but dismissed the appeal with costs.

Orders

Orders of the court

(1) Grant leave to appeal;

(2) Dismiss the appeal with costs.

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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