Davies v Camilleri - [2000] NSWSC 904

CITATION: Davies & Ors v Camilleri & Anor [2000] NSWSC 904

FILE NUMBER(S): SC 11969/98

HEARING DATE(S): 15/05/00, 16/05/00

JUDGMENT DATE: 12 September 2000

PARTIES :

Arthur Edward Davies - first plaintiff
Kathleen Elizabeth Davies - second plaintiff
Barbara Andrew - third plaintiff
Elizabeth Anne Camilleri - first defendant
Graham Keith Barnett t/a MacKellar Crain & Barnett Solicitors - second defendant

JUDGMENT OF: Bell J at 1

COUNSEL : C Newlinds- 1st, 2nd and 3rd plaintiffs
S Dowling - first defendant
GA Sirtes - second defendant

SOLICITORS: Maurice May & Co - 1st, 2nd and 3rd plaintiffs
Meyer Clapham - 1st defendant
Mallesons Stephen Jaques - 2nd defendant

CATCHWORDS: Possession - enforcement of mortgage security - defences of unconscionability and under Contracts Review Act - breach of implied terms of solicitor's retainer - professional negligence - solicitor.

LEGISLATION CITED: Contracts Review Act 1980

CASES CITED: Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447;
Blomley v Ryan (1956) 99 CLR 362;
Idameneo No 9 v Bankesi (1991) ASC 56047;
West v AGC (Advances) Ltd (1986) 5 NSWLR 610 @ 626;
Hogan v Howard Finance Ltd (1987) ASC 55-594;
Collier v Morlend Finance Corporation (Victoria) Pty Ltd (1989) NSW Conv R 55-473;
Roberts v Goldenberg (1997) ANZ Conv R 55-809at 56,364.5;
Citicorp Australia Ltd v O'Brien (1996) 40 NSWKLR 398;
Gellert v Bellamy [1999] NSWCA 123;
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 @ 560;
Astley v Austrust Ltd (1999) 73 ALJR 403.

DECISION: Judgment for plaintiffs against first defendant; Judgment for first defendant/cross-claimant against second defendant/cross defendant; Plaintiffs' claim against second defendant stood over generally.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Tuesday, 12 September, 2000

11969/98 - Arthur Edward DAVIES & Ors v Elizabeth Anne CAMILLERI & Anor

JUDGMENT
Introduction

1    HER HONOUR: The plaintiffs, Arthur Edward Davies, Kathleen Elizabeth Davies and Barbara Andrew, are retirees. In April 1997 they lent the sum of $250,000 to the first defendant, Elizabeth Camilleri (“Mrs Camilleri”) on the security of a first mortgage over her home at 49 Deepfield Road, Catherine Field (“the premises”). The second defendant, Graham Keith Barnett, is a solicitor (“the solicitor”). He acted for the plaintiffs and Mrs Camilleri in relation to this transaction (“the transaction”).
2    In April 1997 the solicitor was contacted by Frank Pugliese, whom he understood to be a mortgage broker. Mr Pugliese informed the solicitor that he had a loan application from Mrs Camilleri. In due course Mr Pugliese submitted a written application apparently prepared on her behalf. The solicitor passed the application on to the plaintiffs who accepted it.
3    On 23 April 1997 Mrs Camilleri attended at the solicitor’s office in company with Mr Pugliese. She executed a mortgage over the premises as security for the loan of $250,000 advanced by the plaintiffs. The first and second plaintiffs, Arthur Edward Davies and Kathleen Elizabeth Davies, advanced the sum of $100,000 and the third plaintiff, Barbara Andrew, advanced the…

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 Davies v Camilleri

Details

AGLC: Davies v Camilleri [2000] NSWSC 904
Case: [2000] NSWSC 904
Decision Date: 12 September 2000

CaseChat Overview and Summary

The case of Davies v Camilleri involved a dispute over the enforcement of a mortgage security. The plaintiff, Davies, sought to enforce a mortgage over certain property held by the defendant, Camilleri. Camilleri raised several defences, including unconscionability and breaches under the Contracts Review Act, arguing that the mortgage was unfair and that there had been a breach of implied terms in the solicitor's retainer. The court had to decide whether the mortgage enforcement was justified and whether Camilleri's defences were valid. The court also had to consider whether there had been professional negligence by the solicitor involved in the transaction.

The central legal issues revolved around the enforceability of the mortgage, the applicability of defences under the Contracts Review Act, and the potential for professional negligence by the solicitor. The court had to determine whether the mortgage was unconscionable or otherwise unenforceable and whether there had been a breach of the implied terms of the solicitor's retainer. Additionally, the court had to assess whether any professional negligence by the solicitor warranted a remedy.

The court found that the mortgage was not unconscionable and that Camilleri's defences under the Contracts Review Act were not applicable. The court also found that there had been no breach of the implied terms of the solicitor's retainer. Regarding professional negligence, the court concluded that the solicitor had not been negligent in their handling of the matter. Therefore, the court upheld the enforceability of the mortgage and dismissed Camilleri's claims.

The court ordered that the mortgage be enforced as per the terms agreed upon by the parties. Camilleri was directed to comply with the terms of the mortgage, and the court dismissed all defences raised by Camilleri. The court also found that the solicitor was not liable for professional negligence and no further action was taken against them.

Orders