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Permanent Custodians Ltd v Shannon [No 2]

Permanent Custodians Ltd v Shannon [No 2]

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Case Copied 21 September 2018 74 min read

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   PERMANENT CUSTODIANS LTD -v- SHANNON [No 2] [2018] WASC 295
CORAM:   LE MIERE J
HEARD:   4-8 DECEMBER 2017
DELIVERED          :   21 SEPTEMBER 2018
FILE NO/S:   CIV 1174 of 2013
BETWEEN:   PERMANENT CUSTODIANS LTD
Plaintiff
AND
ANITA LOUISE SHANNON
First Defendant
CHRISTOPHER CHARLES SHANNON
Second Defendant
ANITA LOUISE SHANNON
First Plaintiff by Counterclaim
CHRISTOPHER CHARLES SHANNON
Second Plaintiff by Counterclaim
AND
PERMANENT CUSTODIANS LTD
First Defendant by Counterclaim
GEL CUSTODIANS PTY LTD
Second Defendant by Counterclaim
AUSTRALIAN MORTGAGE SECURITIES PTY LTD
Third Defendant by Counterclaim
AFIG WHOLESALE PTY LTD
Fourth Defendant by Counterclaim
REGISTER OF TITLES
Fifth Defendant by Counterclaim
PEPPER GROUP LTD
Sixth Defendant by Counterclaim

Catchwords:

Contract law - Mortgage contract - Default - Repayments not made in accordance with terms of agreement

Contract law - Enforceability of contract - Terms and conditions - Whether terms and conditions contained in separate document form part of the contract

Contract law - Agency - Whether intermediary between lender and borrower was an agent of the lender

Contract law - Whether assignment of rights, title and interest was effective

Contract law - Misrepresentation - Whether transaction is void or voidable as a result of misrepresentation

Misleading and deceptive conduct - Whether representations were misleading or deceptive under ASIC Act 2001 (Cth) s 12DA - Whether false or misleading representations made in contravention of National Credit Code s 124 and s 154 or Consumer Credit (Western Australia) Code s 144 and s 114

General law - Unconscionable conduct - Whether defendants were in a position of weakness and vulnerability and accordingly under a special disability at the time of entering the contract

Statutory unconscionable conduct - Whether procuring mortgage and loan was unconscionable conduct in contravention of ASIC Act 2001 (Cth) s 12CB

Property law - Fraud - Whether mortgage is void pursuant to Transfer of Land Act 1983 (WA) s 214A

National Credit Code - Unjust transactions - Whether transaction should be reopened pursuant to s 76

Limitation periods - Valid cause of action - Whether various claims by the defendant are time barred

Legislation:

Australian Securities and Investments Commission Act 2001 (Cth), s 12CB, s 12DA, s 12GF, s 12GM
Consumer Credit (Western Australia) Code (WA), s 114, s 144
Limitation Act 2005 (WA), s 13, s 38
National Credit Code (Cth), s 76, s 77, s 124, s 154, s 188
Transfer of Land Act 1893 (WA), s 214, s 214A

Result:

Judgment for the plaintiff
Defendants' counterclaims dismissed

Category: B

Representation:

Original Action

Counsel:

Plaintiff	:	Mr G D Cobby
First Defendant	:	Mr M M Mony de Kerloy
Second Defendant	:	Mr M M Mony de Kerloy

Solicitors:

Plaintiff	:	Norton Rose Fulbright Australia
First Defendant	:	Mony De Kerloy Barristers and Solicitors
Second Defendant	:	Mony De Kerloy Barristers and Solicitors

Counterclaim

Counsel:

First Plaintiff by Counterclaim	:	Mr M M Mony de Kerloy
Second Plaintiff by Counterclaim	:	Mr M M Mony de Kerloy
First Defendant…

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.

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Details

Case: [2018] WASC 295
Decision Date: 21 SEPTEMBER 2018

CaseChat Overview and Summary

Permanent Custodians Ltd commenced proceedings against the defendants, seeking to enforce a mortgage agreement and related documents. The dispute revolves around the enforceability of the mortgage agreement, the effectiveness of certain terms and conditions, and the role of an intermediary. The case was heard in the Supreme Court of Western Australia. The legal issues addressed by the court include the enforceability of the mortgage agreement, whether certain terms and conditions form part of the contract, the role of the intermediary, and the effectiveness of an assignment of rights. The court also examined whether the transaction was void or voidable due to misrepresentation, misleading or deceptive conduct, unconscionable conduct, or fraud.

The court examined the mortgage agreement and the related documents, including the terms and conditions contained in a separate document. The court considered whether these terms and conditions formed part of the contract and were enforceable. The court also assessed the role of the intermediary between the lender and the borrower, determining whether the intermediary acted as an agent of the lender. The court found that the intermediary was not an agent of the lender and that the assignment of rights, title, and interest was effective. The court further examined whether the transaction was void or voidable due to misrepresentation, misleading or deceptive conduct, unconscionable conduct, or fraud. The court concluded that the transaction was not void or voidable on these grounds.

The court determined that the defendants' claims were either time-barred or without merit. The court found that the mortgage agreement was enforceable and that the terms and conditions were part of the contract. The court also found that the intermediary was not an agent of the lender and that the assignment of rights, title, and interest was effective. The court rejected the defendants' claims of misrepresentation, misleading or deceptive conduct, unconscionable conduct, or fraud. The court found that the defendants' claims were time-barred or without merit, and accordingly dismissed the defendants' claims. The court ordered the defendants to pay the plaintiff's costs of the proceeding.

Orders