Gibson v ANZ Banking Group Ltd

[1999] FCA 1327

FEDERAL COURT OF AUSTRALIA

Gibson v ANZ Banking Group Ltd [1999] FCA 1327

No question of principle

IVY LAURA GIBSON & ORS v ANZ BANKING GROUP LIMITED & ANOR

N 503 OF 1999

HELY J
14 SEPTEMBER 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 503 OF 1999

BETWEEN:	IVY LAURA GIBSON & ORS Applicant
AND:	ANZ BANKING GROUP LIMITED & ANOR Respondent

JUDGE:	HELY J
DATE:	14 SEPTEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I have before me a notice of motion taken out on 8 September 1999 which seeks the striking out of paragraphs 60 to 65 of the amended statement of claim, and summary dismissal of the paragraphs in the application which are dependent upon those paragraphs.  Shortly stated, the case sought to be made by this section of the amended statement of claim is that the third applicant, Sitise Pty Ltd,  was induced to execute a guarantee mortgage in favour of ANZ Bank by a fraudulent representation that Frome was indebted to the ANZ Bank, when in truth it was not.  Mr Marshall submits on behalf of the bank that if Frome was not then indebted to the ANZ Bank then Sitise has suffered no loss, because if Frome was not indebted to ANZ Bank, then no monies were ever secured by the guarantee mortgage.   It is no part of the Bank's case, so he says, that any money was ever advanced by the bank to the third applicant.

2. I do not think that I am in a position to determine on this application and upon this evidence whether, assuming the case which the applicant wishes to make is otherwise well founded, Sitise suffered any loss in consequence of its execution as mortgagor of the guarantee mortgage in question.  A determination of that issue necessarily involves investigation of factual issues which have not yet been undertaken.  All that can be said is that Sitise may or may not have suffered loss if its execution of the guarantee mortgage was induced by the alleged fraudulent misrepresentation. 

3. Nor am I satisfied that the claim is bound to fail by reason of the statute of limitations.  So far as the evidence currently goes, the first demand that was made by the ANZ upon this mortgage was a demand made on 2 August 1999, approximately 15 years after the mortgage in question was first granted.

4. To my mind that raises two considerations.  The first is whether the mortgage being a guarantee mortgage, any loss was suffered prior to the making of the demand for payment pursuant to the guarantee.  The second is that the lapse of 14 years before the making of a demand at least raises a question as to whether it can be meaningfully said the loss was sustained at the point of execution of the mortgage.  I think that those issues are issues which should await a full investigation of the matter.  I therefore dismiss the motion insofar as it seeks the relief referred to in paragraphs 1 and 2.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:             23 September 1999

Counsel for the Applicant:	S Stuckey
Solicitor for the Applicant:	Maurice Blackburn Cashman Lawyers
Counsel for the Respondent:	R D Marshall
Solicitor for the Respondent:	Coudert Brothers
Date of Hearing:	14 September 1999
Date of Judgment:	14 September 1999