Permanent Trustee Australia Limited v Saitannis - [2002] NSWSC 1209

CITATION: Permanent Trustee Australia Limited & Anor v Saitannis [2002] NSWSC 1209 revised - 29/01/2003

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 11520/02

HEARING DATE(S): 18 November 2002

JUDGMENT DATE: 18 December 2002

PARTIES :

Permanent Trustee Australia Limited - First Plaintiff
Challenger Managed Investments Limited - Second Plaintiff
John Saitannis - Defendant

JUDGMENT OF: Mathews AJ

COUNSEL : M Cohen - Plaintiff
J Conomos with S Burchett - Defendant

SOLICITORS: Yandell Wright Stell - Plaintiffs
Barclay Benson Lawyers - Defendant

CATCHWORDS: Application for summary judgment - misconceived defences - judgment entered.

LEGISLATION CITED: Real Property Act (1900)(NSW
Corporations Act 2001
Trade Practices Act 1974 (Cth)
Australian Securities and Investments Commission Act (Cth) 1989

CASES CITED: Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447

DECISION: See paragraph 45

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MATHEWS AJ

18 December 2002
11520/02
PERMANENT TRUSTEE AUSTRALIA LIMITED & ANOTHER
v John SAITANNIS
JUDGMENT

1 HER HONOUR: This matter comes before the court by way of notice of motion filed on behalf of the plaintiff, seeking that judgment be entered pursuant to Pt 13 r 2 of the Supreme Court Rules. Other orders were also sought, but it was the plaintiff’s application for judgment which was the primary matter in issue and upon which I reserved my judgment.

2 Much of the factual background of the matter is undisputed. The first plaintiff is the custodian of the Howard Mortgage Trust (“the Trust”) which provides funds for loan upon commercial terms. It is also the mortgagee of any property which may be provided by way of security for loans advanced by the Trust. The second plaintiff is the trustee of the Trust. The defendant is the registered proprietor of shop premises at 161 King Street, Newtown NSW. (“The Newtown premises”)

3 On 5 October 2001 the defendant and his wife, Spiridoula Saitannis, executed a deed of loan between the plaintiffs as lenders and themselves as borrowers pursuant to which $613,000 was to be made available to them by way of cash advance. The loan was to be repaid in full on 1 November 2002. Interest was payable on the principal sum outstanding at the initial “higher rate” of 11.5 per cent per annum, on the basis that interest at the “lower rate” of 7.5 percent per annum would be accepted if payments were made within seven days of falling due.

4 Also on 5 October 2001 Mr Saitannis entered into a memorandum of mortgage in favour of the first plaintiff over the Newtown premises. The purpose of the mortgage was to secure all moneys outstanding under the deed of loan.

5 On 1 March 2002 Mr and Mrs Saitannis defaulted in their monthly payments under the loan agreement. On 17 April 2002 the first plaintiff served a default notice on Mr Saitannis pursuant to s 57(2)(b) of the Real Property Act (1900) (NSW) (“the Real Property Act”). On 21 May 2002 Mr Saitannis’s solicitor contacted the first…

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: [2002] NSWSC 1209
Decision Date: 18 December 2002

CaseChat Overview and Summary

In the matter of Permanent Trustee Australia Limited versus Saitannis, the Federal Court was called upon to determine an application for summary judgment. The dispute centred on a mortgage agreement, where the plaintiff, Permanent Trustee Australia Limited, sought to enforce a judgment debt against the defendant, Saitannis. The crux of the case lay in whether Saitannis' defences were so lacking in merit that the court could grant summary judgment in favour of the plaintiff without the need for a full trial.

The primary legal issue before the court was whether Saitannis' defences were indeed so misconceived that they had no reasonable prospect of success. The court had to examine the validity of Saitannis' claims and determine if they were legally tenable or if they amounted to nothing more than a futile attempt to delay the inevitable. This required the court to assess the merits of the defences and the evidence provided by both parties.

In its judgment, the court found that Saitannis' defences were indeed misconceived. The arguments presented lacked any reasonable prospect of success, and the court concluded that it was appropriate to enter a summary judgment in favour of the plaintiff. The court was satisfied that the defences were not only unconvincing but also failed to address the fundamental issues at hand. Consequently, the court granted the application for summary judgment and ordered the defendant to pay the judgment debt to the plaintiff. This decision effectively resolved the matter, leaving no grounds for further dispute or appeal.

Orders