Leybourne v Permanent Custodians Ltd [2010] NSWCA 78
HEARING DATE(S):
9 March 2010
JUDGMENT DATE:
23 April 2010
JUDGMENT OF:
Giles JA; Tobias JA; Sackville AJA
DECISION:
(1) Appeal dismissed with costs. (2) Discharge the stay granted on 25 May 2009.
CATCHWORDS:
CONTRACT - loan agreement - pre-contractual statement under Credit Code - part of offer - offer accepted - deed not necessary - addition of "per" to lender's signature - not material change - Real Property Act ss 36(10)(a), 36(11), 51A - Conveyancing Act ss 23C, 38 not relevant - intention to create legal relations manifested - agreement binding - no question of principle. MORTGAGE - signed by solicitor for mortgagee to certify correctness of dealing - solicitor's name substituted - not material alteration - mortgage secured an enforceable loan agreement - memorandum validly incorporated - no question of principle. PROCEDURAL FAIRNESS - application for adjournment in order to apply to consolidate with other proceedings - application for adjournment due to late production of evidence - leave to apply again if prejudice shown - no procedural unfairness - solicitor appearing for himself - not to be treated as unrepresented litigant. EVIDENCE - Evidence Act ss 135, 136 - no unfair prejudice - no error shown. AGENCY - authority to sign for lender - on facts, was authority - in any event, ratification established - not necessary for ratification to know particular act of agency.
[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.
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AGLC
Leybourne v Permanent Custodians Ltd [2010] NSWCA 78
Case
[2010] NSWCA 78
Decision Date
CaseChat Overview and Summary
The appeal concerned a dispute between the appellant, Leybourne, and the respondent, Permanent Custodians Ltd, regarding a loan agreement and a mortgage. The primary issue was whether these documents constituted a binding agreement and a validly registered mortgage, or if certain alleged irregularities rendered them unenforceable. The matter was heard in the Court of Appeal of New South Wales.
The court was required to determine several legal issues. These included whether a pre-contractual statement made by the lender formed part of the loan offer, whether the addition of the word "per" to the lender's signature on the loan agreement constituted a material alteration, and whether the mortgage was validly executed and incorporated the loan agreement. The court also considered whether the solicitor's signature on the mortgage, with their name substituted, amounted to a material alteration, and whether the solicitor had the authority to sign on behalf of the lender, or if ratification had occurred. Finally, the court had to assess whether any alleged procedural unfairness or evidentiary issues had arisen.
The Court of Appeal found that the pre-contractual statement was part of the offer, which was accepted by the appellant, and that a deed was not necessary for the agreement to be binding. The addition of "per" to the lender's signature was not considered a material change, and the intention to create legal relations was sufficiently manifested. The court held that the mortgage secured an enforceable loan agreement and was validly incorporated, with the solicitor's signature not constituting a material alteration. On the issue of agency, the court found that the solicitor had the authority to sign, and even if not, ratification had been established. The court also determined that no unfair prejudice arose from the admission or exclusion of evidence, and that the appellant had not suffered procedural unfairness.
Consequently, the appeal was dismissed with costs, and the stay granted on 25 May 2009 was discharged.