JUDGE:	ALMOND J
WHERE HELD:	Melbourne
DATE OF HEARING:	12-14,18-19 March 2013
DATES OF JUDGMENT:	27 June 2013
CASE MAY BE CITED AS:	Commercial Base Pty Ltd v Watson & anor
MEDIUM NEUTRAL CITATION:	[2013] VSC 334

EQUITY – Duress – Unconscionable dealing – Whether the loan agreement or mortgage signed by the first defendant was signed under duress or in circumstances where the plaintiff unconscientiously took advantage of the first defendant’s financial circumstances – Whether the loan agreement constituted an attempted to bind the first defendant to loans which were not approved, agreed, discussed or connected with him.

MONEY – Payment – Whether the first defendant is jointly and severally liable for advances made by the plaintiff – Whether the plaintiff settled or compromised the debt with the first defendant.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	C R Northrop	GSM Lawyers
For the Defendants	The first defendant The second defendant	Appeared in person Appeared in person

HIS HONOUR:

In 2002, the first defendant, Robert Noel Watson, and the first third party, Frederick Charles Gibson, and companies associated with them brought proceedings in the Federal Court of Australia against Robert James Forbes and companies associated with Mr Forbes. The litigation concerned allegations that Mr Forbes and his companies were in breach of obligations under joint venture arrangements. Claims were made against the Forbes interests for breach of contract, breach of fiduciary duties and under the Trade Practices Act 1974 (Cth)[1] (“the Federal Court proceeding”).
[1]Gibson Motorsport Merchandise Pty Ltd & ors v Robert James Forbes & ors [2005] FCA 749, [13] and [14].

The applicants’ claims in the Federal Court proceeding were partially successful. The applicants appealed in respect of claims which did not succeed at first instance. The Federal Court appeal was dismissed in March 2006. [2]
[2]Gibson Motorsport Merchandise Pty Ltd & ors v Robert James Forbes & ors [2006] FCAFC 44.

In separate litigation brought in the Supreme Court of Victoria in 2003, Mr Watson and Mr Gibson and companies associated with them brought proceedings against their legal practitioners Ebsworth & Ebsworth, and Mr Phillip Battye, a solicitor, alleging breaches of fiduciary duty and seeking damages for economic loss suffered (“the Supreme Court proceeding”). These claims were dismissed in 2008.[3] An appeal to the Court of Appeal was dismissed on 10 December 2010.[4] An application for special leave to appeal to the High Court was dismissed on 2 September 2011.[5]
[3]Watson & ors v Ebsworth & Ebsworth [2008] VSC 510.
[4]Watson & ors v Ebsworth & Ebsworth [2010] VSCA 335.
[5]Watson & ors v Ebsworth & Ebsworth [2011] HCA Trans 246.

Commercial Base Pty Ltd (“Commercial Base”), the plaintiff in this proceeding, says that it provided funding from 2003 to…

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 Commercial Base Pty Ltd v Watson

Details

AGLC: Commercial Base Pty Ltd v Watson [2013] VSC 334
Case: [2013] VSC 334
Decision Date: 27 June 2013

CaseChat Overview and Summary

Commercial Base Pty Ltd (the plaintiff) took action against Mr Watson (the first defendant) seeking a declaration that he was liable for the payment of a loan and interest. The dispute also involved whether the plaintiff had attempted to bind the first defendant to loans which were not approved, agreed, discussed, or connected with him, and whether the first defendant was jointly and severally liable for advances made by the plaintiff. The matter was heard in the Supreme Court of New South Wales. The first defendant argued that the loan agreement and mortgage were signed under duress or in circumstances where the plaintiff unconscientiously took advantage of his financial circumstances. He also claimed that the plaintiff had attempted to bind him to loans that were not approved, agreed, discussed, or connected with him, and that he was not jointly and severally liable for the advances made by the plaintiff.

The court considered whether the first defendant had established that the loan agreement or mortgage was signed under duress or in circumstances where the plaintiff unconscientiously took advantage of his financial circumstances. The court also considered whether the loan agreement constituted an attempted to bind the first defendant to loans which were not approved, agreed, discussed, or connected with him. The court further considered whether the first defendant was jointly and severally liable for advances made by the plaintiff and whether the plaintiff had settled or compromised the debt with the first defendant.

The court found that the first defendant had not established that the loan agreement or mortgage was signed under duress or in circumstances where the plaintiff unconscientiously took advantage of his financial circumstances. The court also found that the loan agreement did not constitute an attempted to bind the first defendant to loans which were not approved, agreed, discussed, or connected with him. The court further found that the first defendant was jointly and severally liable for advances made by the plaintiff and that the plaintiff had not settled or compromised the debt with the first defendant. The court ordered that the first defendant was liable for the payment of the loan and interest and that he was jointly and severally liable for the advances made by the plaintiff.

Orders