Hassarati v The Trust Company (Australia) Limited

[2013] NSWCA 132

Court of Appeal

New South Wales

Case Title:

Hassarati v The Trust Company (Australia) Limited

Medium Neutral Citation:

[2013] NSWCA 132

Hearing Date(s):

20 February 2013

Decision Date:

20 February 2013

Before:

Beazley JA; Barrett JA

Decision:

1. Grant leave to appeal;

2. The costs of the summons for leave to appeal are to be costs in the appeal as between the applicant and the first respondent;

3. Note that no other order for costs is made.

[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:

APPEAL - civil - leave to appeal - arguable case - whether standing to bring an action under Contracts Review Act 1980

Legislation Cited:

Contracts Review Act 1980

Category:

Principal judgment

Parties:

George Hassarati (First Applicant)
Josephine Hassarati (Second Applicant)
The Trust Company (Australia) Limited (First Respondent)
Australian and New Zealand Banking Group Limited (Second Respondent)
Alvera Hassarati (Third Respondent)
Lily Hassarati (Fourth Respondent)
Royal Guardian Mortgage Corporation (Fifth Respondent)
Anthony Tomazin (Sixth Respondent)
CKM (Mortgages) Ltd (Seventh Respondent)
John Maait (Eighth Respondent)
Joseph Kotowicz (Ninth Respondent)
Simon Konstantinidis (Tenth Respondent)
Joseph Capogreco (Eleventh Respondent)
National Australia Bank (Twelfth Respondent)

Representation

- Counsel:

Counsel:
D R Pritchard SC; B Zipser (Applicants)
R Henskens; N Bearup (First and Second Respondents)
P Cutler (Third Respondent)
R Watson (Seventh Respondent)
I Griscti (Eight Respondent)
R Kumar (Ninth and Tenth Respondents)
M Connery (Eleventh Respondent)
P Reynolds (Twelfth Respondent)

- Solicitors:

Solicitors:
Pericaud Zraika (First and Second Applicants)
Gadens Lawyers (First and Second Respondents)
Gary Pickering (Third Respondent)
Bransgroves Lawyers (Fifth Respondent)
Gibson Howlin Lawyers (Seventh Respondent)
Middletons Lawyers (Eighth Respondent)
HWL Ebsworth Lawyers (Ninth and Tenth Respondents)
Connery Partners (Eleventh Respondent)
National Australia Bank (Twelfth Respondent)

File Number(s):

CA 2012/357447

Decision Under Appeal

- Court / Tribunal:

Supreme Court

- Before:

Davies J

- Date of Decision: 

24 October 2012

- Citation:

Trust Co Fiduciary Services Ltd v Hassarati (No 3) [2012] NSWSC 979

- Court File Number(s):

2009/295712

JUDGMENT

1. THE COURT: In the present case, the applicants, who are not parties to the mortgage contract, made an application in the Supreme Court to file a defence to proceedings brought by the first respondent for possession in which the applicants sought to plead a claim under the Contracts Review Act 1980. The Court notes that any other basis upon which the applicants sought to plead against the first respondent is no longer pursued.

2. In the usual course, where the proceedings before the Court commence by way of a possession suit at the instance of a mortgagee and the defendant wishes to challenge the underlying transaction under, relevantly, the Contracts Review Act, the proceedings are defended in effect by the bringing of a cross-claim under the Act. Having regard to what has just been said as to the way in which such claims are brought, the applicants may need to consider the form of their pleadings. However, that question is not before the Court on this application, which is the summons for leave to appeal.

3. The Court is satisfied that there is at least an arguable case that the applicants have standing to bring an action under the Contracts Review Act against the first respondent and their application raises an important question of the construction of that Act, namely, what are the indicia of standing to bring a claim under the Act. For that reason, the Court is of the opinion that leave to appeal should be granted.

4. The costs of the summons for leave to appeal should be the costs in the appeal as against the applicants and the first respondent. There should be no costs order relating to the summons for leave to appeal in respect of the other parties who appeared today.

5. Accordingly, the orders of the Court are:

   1. Grant leave to appeal;

   2. The costs of the summons for leave to appeal are to be costs in the appeal as between the applicant and the first respondent;

   3. Note that no other order for costs is made.

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