Carnemolla v Adelaide Bank - [2013] NSWCA 122

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Carnemolla v Adelaide Bank [2013] NSWCA 122
Hearing dates: 20 March 2013
Decision date: 14 May 2013
Before: McColl JA; Barrett JA; Tobias AJA
Decision:
Appeal be dismissed with costs
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: MORTGAGE - fraud - whether mortgage entered into - whether signatures forged - whether loan existed - whether broker misled appellants - overpayment
Legislation Cited: Civil Procedure Act 2005
Contracts Review Act 1980
Supreme Court Act 1970
Cases Cited: Akins v National Australia Bank (1994) 34 NSWLR 155
Baira v RHG Mortgage Corporation Limited [2012] NSWCA 387
Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Hammond v JP Morgan Trust Australia Ltd [2012] NSWCA 295
Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2013] NSWCA 35
Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64
Tjiong v Tjiong [2012] NSWCA 201
Category: Principal judgment
Parties: Sebastian Carnemolla (First Appellant)
Lucia Carnemolla (Second Appellant)
Bendigo and Adelaide Bank Limited (First Respondent)
Leon Angelopoulos (Second Respondent)
PC Wholesale Funds Pty Ltd (formerly known as Premier Capital Pty Limited) (Third Respondent)
Representation: Counsel:
G Sirtes SC (Bendigo and Adelaide Bank Ltd)
M Sneddon (Mr L Angelopoulos)
K Rees SC with R Jedrzejczyk (Romavale Pty Ltd)
J Sheller with C Lee as Amicus Curiae
Solicitors:
In person (Appellants)
MacGillivrays Solicitors (Bendigo and Adelaide Bank Ltd)
Laliotis Lawyers (Mr L Angelopoulos)
Moray & Agnew (Romavale Pty Ltd)

File Number(s): CA 2012/81298
Decision under appeal

Citation:

[2011] NSWSC 1202

Date of Decision:

2011-10-14 00:00:00

Before:

Hislop J

File Number(s):

2007/263386

Judgment

THE COURT: The appellants, Sebastian and Lucia Carnemolla, appeal from a judgment of Hislop J in which his Honour made an order for possession with respect to the appellants' family home due to their default in the repayment of a loan secured upon that house. However, the present case differs from many cases of a similar type where parents of senior years have mortgaged their home as guarantors of a loan made to their adult children so that they have not received any benefit therefrom. In the present case, the relevant loan in respect of which the appellants defaulted was one from which they benefited as borrowers rather than as guarantors: cf Baira v RHG Mortgage Corporation Limited [2012] NSWCA 387 at [216]-[217] per Basten JA.

The basic background facts

The appellants are husband and wife and as at December 2004 were the owners of adjoining townhouses at Smithfield being…

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 Carnemolla v Adelaide Bank

Details

AGLC: Carnemolla v Adelaide Bank [2013] NSWCA 122
Case: [2013] NSWCA 122
Decision Date: 14 May 2013

CaseChat Overview and Summary

Carnemolla v Adelaide Bank concerned an appeal to the New South Wales Court of Appeal from a decision of the primary judge. The appellants, Mr and Mrs Carnemolla, sought to set aside a mortgage granted to Adelaide Bank, alleging that their signatures on the mortgage documents and related loan agreements were forgeries. They contended that no loan had ever been advanced to them and that they had been misled by a mortgage broker.

The central legal issues before the Court of Appeal were whether the mortgage and loan documents were validly executed by the appellants, whether a loan in fact existed, and whether the appellants had been induced to enter into the transaction by misleading conduct on the part of the mortgage broker. The Court was required to determine the factual circumstances surrounding the execution of the documents and the advancement of funds, and to apply the relevant principles of contract law and consumer protection legislation.

The Court of Appeal upheld the primary judge's findings of fact, concluding that the evidence did not support the appellants' claims of forgery or misleading conduct. The Court found that the appellants had indeed signed the mortgage and loan documents, and that a loan had been advanced by Adelaide Bank. The Court applied principles relating to the validity of contracts, the burden of proof in cases of alleged fraud, and the interpretation of evidence concerning the execution of legal documents.

The appeal was dismissed, and the appellants were ordered to pay the costs of Adelaide Bank.

Orders

Orders of the court

Appeal be dismissed with costs

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Carnemolla v Adelaide Bank [2013] NSWCA 122
Hearing dates:	20 March 2013
Decision date:	14 May 2013
Before:	McColl JA; Barrett JA; Tobias AJA
Decision:	Appeal be dismissed with costs [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	MORTGAGE - fraud - whether mortgage entered into - whether signatures forged - whether loan existed - whether broker misled appellants - overpayment
Legislation Cited:	Civil Procedure Act 2005 Contracts Review Act 1980 Supreme Court Act 1970
Cases Cited:	Akins v National Australia Bank (1994) 34 NSWLR 155 Baira v RHG Mortgage Corporation Limited [2012] NSWCA 387 Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Hammond v JP Morgan Trust Australia Ltd [2012] NSWCA 295 Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2013] NSWCA 35 Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64 Tjiong v Tjiong [2012] NSWCA 201
Category:	Principal judgment
Parties:	Sebastian Carnemolla (First Appellant) Lucia Carnemolla (Second Appellant) Bendigo and Adelaide Bank Limited (First Respondent) Leon Angelopoulos (Second Respondent) PC Wholesale Funds Pty Ltd (formerly known as Premier Capital Pty Limited) (Third Respondent)
Representation:	Counsel: G Sirtes SC (Bendigo and Adelaide Bank Ltd) M Sneddon (Mr L Angelopoulos) K Rees SC with R Jedrzejczyk (Romavale Pty Ltd) J Sheller with C Lee as Amicus Curiae Solicitors: In person (Appellants) MacGillivrays Solicitors (Bendigo and Adelaide Bank Ltd) Laliotis Lawyers (Mr L Angelopoulos) Moray & Agnew (Romavale Pty Ltd)
File Number(s):	CA 2012/81298
Decision under appeal	Citation: [2011] NSWSC 1202 Date of Decision: 2011-10-14 00:00:00 Before: Hislop J File Number(s): 2007/263386