Dimitrovski v Australian Executor Trustees Ltd

Case [2014] NSWCA 68

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Dimitrovski v Australian Executor Trustees Limited [2014] NSWCA 68
Hearing dates:21/02/2014
Decision date: 18 March 2014
Before: Meagher JA at [1]
Emmett JA at [28]
Bergin CJ in Eq at [95]
Decision:

1. Leave to appeal be granted.

2. The amended Notice of Appeal filed on 8 November 2013 be taken, nunc pro tunc, to be filed pursuant to that leave.

3. The appeal be dismissed.

4. The appellant pay the costs of the first respondent to the appeal.

[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: MORTGAGES - mortgages and charges generally - form, validity and effect - whether breach of the Powers of Attorney Act
PROCEDURE - judgments and orders - effect of judgments - whether res judicata, issue estoppel or Anshun estoppel made out
Legislation Cited: Corporations Act 2001 (Cth), s 420A
Conveyancing Act 1919 (NSW), s 111A
Powers of Attorney Act 2003 (NSW), ss 11, 12, 13
Probate and Administration Act 1898 (NSW), s 81A
Real Property Act 1900 (NSW), ss 3(1)(b), 57(2)(b)
Registration of Deeds Act 1898 (NSW)
Supreme Court Act 1970 (NSW), s 101(1)(a), 101(2)(e)
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28, 36.15(1)
Cases Cited: Blair v Curran [1939] HCA 23; 62 CLR 464
Dimitrovski v Australian Executor Trustees Ltd [2013] NSWSC 337
ED&F Man (Sugar) Ltd v Haryanto (No 2) [1991] 1 Lloyd's Rep 429
Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993
Morlend Finance Corporation v Levine [1990] VR 205
Siahos v JP Morgan Trust Australia Ltd [2009] NSWCA 20
The City Bank of Sydney v McLaughlin [1909] HCA 78; 9 CLR 615
Tobin v Broadbent [1947] HCA 46; 75 CLR 378
Texts Cited: KR Handley, Spencer Bower and Handley: Res Judicata (4th ed 2009, LexisNexis)
Category:Principal judgment
Parties: George Dimitrovski (Appellant)
Australian Executor Trustees Limited (ACN 007 869 794) (First Respondent)
Kosta Dimitrovski (Second Respondent)
Representation: Counsel:
Appellant (self-represented)
J Stoljar SC with SA Wells (First Respondent)
Solicitors:
Gadens Lawyers (First Respondent)
File Number(s):2013/153380 2013/375429
Publication restriction:No
 Decision under appeal 
Date of Decision:
2013-04-19 00:00:00
Before:
Pembroke J
File Number(s):
2012/280051
2011/12370

Judgment

  1. MEAGHER JA: In September 2006 the first respondent, Australian Executor Trustees Ltd (AET), advanced $3.311 million to Thirroul Property Holdings Pty Ltd (TPH) to assist it to purchase the Headlands Hotel at Austinmer. The repayment of that loan was guaranteed by the appellant, George Dimitrovski, and the second respondent, his father, Kosta Dimitrovski, jointly and severally. It was also the subject of a separate guarantee by his father's mother,…

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AGLC
Dimitrovski v Australian Executor Trustees Ltd [2014] NSWCA 68
Case
[2014] NSWCA 68
Decision Date

CaseChat Overview and Summary

The appeal before the Court of Appeal of New South Wales concerned a dispute between the appellant, Mr. Dimitrovski, and the first respondent, Australian Executor Trustees Ltd. The core of the disagreement revolved around the validity of a mortgage and whether a prior court decision gave rise to an estoppel preventing Mr. Dimitrovski from pursuing his current claims.

The court was required to determine two primary legal issues. Firstly, whether the mortgage in question was invalid due to a breach of the *Powers of Attorney Act 2003* (NSW). Secondly, the court had to consider whether the doctrine of *res judicata*, issue estoppel, or *Anshun* estoppel applied, thereby precluding Mr. Dimitrovski from relitigating issues that had allegedly been, or could have been, determined in earlier proceedings.

In its reasoning, the Court of Appeal found that the appellant had not established a breach of the *Powers of Attorney Act 2003* (NSW) in relation to the mortgage. Furthermore, the court concluded that the principles of estoppel, specifically *res judicata* and *Anshun* estoppel, were made out. This meant that the prior proceedings had conclusively determined the matters in dispute, or that the appellant should have raised those matters in the earlier litigation. Consequently, the appeal was dismissed.

Orders

Orders of the court

1. Leave to appeal be granted.

2. The amended Notice of Appeal filed on 8 November 2013 be taken, nunc pro tunc, to be filed pursuant to that leave.

3. The appeal be dismissed.

4. The appellant pay the costs of the first respondent to the appeal.

[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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

BERGIN CJ

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Ratio Decidendi

Legal Principle Established

Established by: BERGIN CJ

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