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Permanent Custodians Limited v Leybourne

Permanent Custodians Limited v Leybourne

Case [2009] NSWSC 288 20 April 2009

Mortgages & Security Interests

Unconscionable Conduct

Compensatory Damages

Consumer Credit Code

Property Law

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CITATION: Permanent Custodians Limited v Leybourne [2009] NSWSC 288

HEARING DATE(S): 23-27 March 2009 inclusive

JUDGMENT DATE :
20 April 2009

JURISDICTION: Common Law

JUDGMENT OF: Michael Grove J

DECISION: Judgment for Plaintiff
Judgment for Cross Defendant on Cross Claim

CATCHWORDS: POSSESSION OF LAND - Claim by mortgagee - Identity of entity with whom borrower dealt - Whether deed necessary to implement loan agreement - Sufficiency of acknowledgement by initials on parts of documents - Authority of solicitor to sign agreement on behalf of lender - Whether mortgage relevantly altered - Incorporation of conditions by reference to memorandum filed in Land Titles Office - Property valuation submitted by borrower now challenged as to assessment - Amount of advance excluding relief under hardship provisions of Consumer Credit Code - Agreement and terms neither unjust in terms of Code or Contracts Review Act - Debit of enforcement expenses to borrower's account - Untenable cross claim - Entitlement of plaintiff to judgment demonstrated

LEGISLATION CITED: Australian Securities & Investments Commission Act 2001
Real Property Act 1900

CATEGORY: Principal judgment

CASES CITED: Beneficial Finance Ltd v Karibas (1991) 25 NSWLR 256
Charles v Parkinson [2000] FCA 1467
Equuscorp Pty Ltd v Glengallan Investments (2004) 218 CLR 471
Jones v Dunkel (1959) 101 CLR 298
Kingsley's Chicken Pty Ltd v Queensland Investment Corporation [2005] ACTSC 117
Masters v Cameron (1932) 91 CLR 335
New Hart Builders Ltd v Brindley 1975 1 All ER 1007
Nguyen v Taylor (1992) 27 NSWLR 48
Pianta v Nation Finance & Trustees Ltd (1964) 180 CLR 146
Provident Capital Ltd v Printy [2008] NSWCA 131
Riganese v M & B Farmer Nominees [2008] SADC 99
Riz v Perpetual Trustees Australia Ltd [2007] NSWSC 1153
Toll (FGCT) Pty Ltd v Alphapharm Pty Limited (2004) 219 CLR 165
West v AGC (Advances) Ltd (1986) 5 NSWLR 610

PARTIES: Permanent Custodians Limited - Plaintiff
Brett Leybourne - Defendant

FILE NUMBER(S): SC 15297/06

COUNSEL: S Docker - Plaintiff
In person - Defendant

SOLICITORS: Kemp Strang - Plaintiff

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MICHAEL GROVE J

20 April 2009

15297/06 - PERMANENT CUSTODIANS LIMITED v BRETT LEYBOURNE
JUDGMENT

1 HIS HONOUR: The plaintiff seeks judgment for the possession of land and for a sum of indebtedness calculated by reference to a Loan Agreement. I use that expression in harmony with the title on the document but I note the contention by the defendant that its true character is that of a pre-contractual statement. The plaintiff is the holder of a mortgage secured upon the land. It is not contested that the defendant is in default of payments due under the mortgage but he contends that it is either unenforceable or, for various reasons, he should be relieved in whole or in part from the consequences of default. The pleadings include a cross claim by the defendant against the plaintiff.

2 The defendant has represented himself in the proceedings. The evidence shows that at the relevant time of obtaining…

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 Permanent Custodians Limited v Leybourne

Details

AGLC: Permanent Custodians Limited v Leybourne [2009] NSWSC 288
Case: [2009] NSWSC 288
Decision Date: 20 April 2009

CaseChat Overview and Summary

In the matter of Permanent Custodians Limited versus Leybourne, the primary dispute centred around the possession of land and the legalities surrounding a mortgage agreement. The case was heard by the Supreme Court of Queensland. The plaintiff, Permanent Custodians Limited, sought possession of certain land based on a mortgage agreement with the defendant, Leybourne. The central legal issues revolved around whether a deed was necessary to implement the loan agreement, the sufficiency of the acknowledgement by initials on parts of the documents, and the authority of the solicitor to sign the agreement on behalf of the lender. Furthermore, the court had to determine whether the mortgage had been altered in a relevant manner, and if conditions could be incorporated by reference to a memorandum filed in the Land Titles Office.

The court carefully examined the evidence and the arguments presented. It concluded that the acknowledgement by initials was sufficient to validate the agreement, and the solicitor had the authority to sign on behalf of the lender. The court also found that the mortgage had not been altered in any significant way that would invalidate the agreement. The incorporation of conditions by reference to the memorandum was deemed valid, and the property valuation submitted by the borrower was not found to be flawed to the extent that it would affect the agreement. The court determined that the amount of the advance was not subject to the relief under the hardship provisions of the Consumer Credit Code, and the agreement and its terms were neither unjust under the Code nor the Contracts Review Act. Additionally, the debit of enforcement expenses to the borrower's account was found to be legitimate.

The court's ruling was in favour of the plaintiff, Permanent Custodians Limited, granting them the judgment sought. The cross-claim made by the defendant was found to be untenable. The final orders of the court provided for the possession of the land by the plaintiff, with specific directions regarding the enforcement expenses and other costs associated with the proceedings.

Orders