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Lopes v Taranto

Lopes v Taranto

Case [2018] VSCA 288 12 November 2018

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2018 0004

JOHN BERNARD LOPES	First Applicant
and
KAY MAREE LOPES	Second Applicant
v
PETER FRANCIS TARANTO (as Executor of the Will and Estate of JOSEPH TARANTO (Deceased))	Respondent

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JUDGES:	KYROU, McLEISH and HARGRAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 August 2018
DATE OF JUDGMENT:	12 November 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 288
JUDGMENT APPEALED FROM:	[2017] VCC 1613 (Judge Woodward)

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CONTRACT – Deed of loan stating amount ‘lent or agreed to be lent’ – Whether deed of loan acknowledged making of loan – Commercial purpose – Documents showing debtor accepted liability to repay creditor amounts lent to creditor by third parties and amounts lent to other parties by debtor – Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 640; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 91 ALJR 486; Eureka Operations Pty Ltd v Viva Energy Australia Ltd [2016] VSCA 95, applied.

CONTRACT – Guarantee – Guarantees securing amounts due under deed of loan – Estoppel by deed between lender and borrower – Borrower indebted under deed of loan – No privity between guarantors and debtor – Guarantors unable to claim deed of loan operated differently for purposes of guarantee – Labracon Pty Ltd v Cuturich (2013) 17 BPR 32,497; Begley v Attorney-General (NSW) (1910) 11 CLR 432, referred to.

PLEADINGS – Whether estoppel properly pleaded – Function of pleadings – Statements of issues – Estoppel argument canvassed during closing addresses – Applicants addressed estoppel issue in written submissions – Respondent eschewed estoppel by deed but argued deed of loan had same operation as against guarantors – Applicants alleged in supplementary closing submissions new case being run – No amendment sought – Banque Commerciale SA, en liquidation v Akhil Holdings Ltd (1990) 169 CLR 279, applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr D G Collins QC with Ms D Skenner QC	Morgan Conley Lawyers
For the Respondent	Mr P S Noonan	Keith A Elliot Pty Ltd

KYROU JA
McLEISH JA
HARGRAVE JA:

The applicants seek leave to appeal against a judgment of the County Court holding them liable under guarantees each of them had executed in favour of the first applicant’s uncle. The respondent is the executor of the uncle’s deceased estate.

The question at trial was whether the uncle was ever owed the moneys his estate claimed under the guarantees. The applicants contend that, in finding that a loan had been made by the uncle to the alleged debtor, the judge relied on an estoppel that had not been part of the case pleaded by the respondent. The applicants further contend that the conclusion reached by the judge that an estoppel had been established was wrong in any event. The applicants contend that the judge was also in error in accepting, in the alternative, that 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 Lopes v Taranto

Details

AGLC: Lopes v Taranto [2018] VSCA 288
Case: [2018] VSCA 288
Decision Date: 12 November 2018

CaseChat Overview and Summary

In the matter of Lopes v Taranto, the dispute arose from a deed of loan which specified an amount "lent or agreed to be lent." The nature of the disagreement was whether this deed acknowledged the making of a loan, particularly in a commercial context. The case was heard in the Supreme Court of Victoria. The court was tasked with determining whether the deed of loan was an acknowledgement of the loan and whether the guarantors could claim that the deed operated differently for the purposes of the guarantee.

The legal issues before the court were primarily concerned with the interpretation of the deed of loan and the applicability of estoppel by deed. The court needed to assess whether the deed was an acknowledgement of the loan and if the guarantors could argue that the deed operated differently for them. Additionally, the court had to consider the function of pleadings and whether estoppel was properly pleaded, particularly in light of the closing addresses and written submissions made by the parties.

The court's reasoning focused on the language of the deed of loan and the broader context in which it was made. It concluded that the deed of loan did acknowledge the making of the loan and that the guarantors could not argue that the deed operated differently for them. The court relied on several precedents, including Electricity Generation Corporation v Woodside Energy Ltd, Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd, Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd, and Eureka Operations Pty Ltd v Viva Energy Australia Ltd. The court further noted that estoppel by deed was not properly pleaded and that the pleadings did not adequately address the estoppel argument.

The final orders of the court were that the deed of loan acknowledged the making of the loan and that the guarantors could not argue that the deed operated differently for them. The court dismissed the estoppel argument due to inadequate pleading and the lack of amendment to the pleadings. The court's decision was grounded in the specific language of the deed and the legal principles established by the cited precedents.

Orders