Cash Resources Australia Pty Ltd v Bentley

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 4846 of 2002

CASH RESOURCES AUSTRALIA PTY LTD
(ACN 004 792 330)

Plaintiff

v

MALCOLM GRAHAM JOHN BENTLEY

and

First Defendant

LYNETTE ANNE BENTLEY

Second Defendant

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JUDGE:	GILLARD J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 July 2002
DATE OF JUDGMENT:	12 July 2002
CASE MAY BE CITED AS:	Cash Resources Australia Pty Ltd v Bentley and Anor
MEDIUM NEUTRAL CITATION:	[2002] VSC 271

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FAIR TRADING ACT 1999 – Application to VCAT – Proceeding no longer justiciable in Supreme Court – Fair trading dispute – Section 111 – Stay of Supreme Court proceeding.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Dixon	Cornwall Stodart
For the Second Defendant	Mr P.R. Best with Mr J. Gray	Tatchell Sheedy

HIS HONOUR:

1. The return of a summons, filed in the proceeding by the second defendant, seeking an order that the proceeding be dismissed for want of jurisdiction or, alternatively, an order that it be stayed pending the hearing of a matter in the Victorian Civil and Administrative Tribunal ("the Tribunal").

Parties

1. The plaintiff, Cash Resources Pty Ltd ("the plaintiff"), is an investor which lends money.  The first defendant, Malcolm Graham John Bentley ("Mr Bentley"), is married to the second defendant, and carried on business through a company called Collins Street Lamp Company Pty Ltd ("the Company"). 

1. The second defendant, Lynette Anne Bentley ("Mrs Bentley"), is and was, at all material times, a joint owner with her husband of premises situated at 4 Stewart Avenue, Wandin North ("the property").

The Loan

1. Mr Bentley, at all relevant times, was a director and shareholder of the Company.  In early 2001, the Company was in financial difficulties.  Mrs Bentley was not a shareholder, nor was she a director.  In order to alleviate the Company's financial problems, Mr Bentley and the Company commenced negotiations with the plaintiff to obtain financial accommodation.  The negotiations were finalised in about May 2001.

1. The plaintiff agreed to lend to the Company, on a short term basis, the sum of $308,000, secured by guarantees from Mr and Mrs Bentley, the Company and Mr Bentley's brother and his wife.  A number of documents had to be executed, and Mr and Mrs Bentley were required to provide a mortgage over their matrimonial home to secure repayment of the loan.

1. On 14 May 2001, the plaintiff forwarded to the Company a number of documents to be executed, including a mortgage over the defendants' home, guarantee, indemnity and charge, and a facilities agreement.  Also included was a solicitor's certificate to be completed by a solicitor.

1. A solicitor, Mr Theodore Zervas, signed the certificate, in which he certified that he explained the documents to the defendants, and the defendants certified that they had read a copy of the certificate and that the information stated therein was true.

1. On 19 June 2001, some of the funds were made available to, inter alia, the defendants.  A further…