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Perpetual Trustees Victoria Limited v Menzies

Perpetual Trustees Victoria Limited v Menzies

Case [2012] NSWSC 1066 10 September 2012

Contract Formation

Fiduciary Duty

Unconscionable Conduct

Compensatory Damages

Fraud

Contract Law

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Perpetual Trustees Victoria Limited v Menzies [2012] NSWSC 1066
Hearing dates: 31 August 2010, 1 - 3, 6 -10, 16, 22 - 24, 29 September 2010, 22 October 2010, 3, 20 December 2010, 1, 3, 14, 15 March 2011, 1, 4, 5, 13, 14 April 2011
Decision date: 10 September 2012
Jurisdiction: Common Law
Before: Adams J
Decision:
1. I give judgment for Ms Menzies on the action brought by Perpetual and Challenger against Ms Menzies.
2. She is not liable under either the mortgage or the loan agreement.
3. It may be that some ancillary orders need to be made, and I will give directions about this matter and as to costs after hearing from the parties.
4. In the circumstances, it is not necessary for me to consider Ms Menzies' cross-claims.

Legislation Cited: Evidence Act 1995 (Cth)
Conveyancing Act 1919
Real Property Act 1900
Land Titles Act 1925
Interpretation Act 1987
Sale of Goods Act 1923
Privacy Act 1988 (Cth)
Cases Cited: Jones v Dunkel [1959] HCA 8; 101 CLR 298
Manly Council v Byrne and Anor [2004] NSWCA 123
Greenwood v. Martins Bank Ltd [1933] AC 51
Thompson v Palmer [1933] HCA 61; (1933) 49 CLR 507
Moorgate Mercantile Co Ltd v Twitchings [1977] AC 890
Associated Midland Corporation v Sanderson Motors Pty Limited [1983] 3 NSWLR 395
Thomas Australia Wholesale Vehicle Trading Co Pty Ltd v Marac Finance Australia Ltd (1985) 3 NSWLR 452
Rowe v B & R Nominees Pty Ltd [1964] VR 477
Capital Access Australia Pty Limited v Hraiki and Anor [2011] NSWSC 109
Chen v Song [2005] NSWSC 19
Klement v Pencoal Limited [2000] QCA 152
Soyfer v Earlmaze Pty Limited [2000] NSWSC 1068
Texts Cited: G E Dal Pont, Law of Agency, 2nd ed (2008) LexisNexis Butterworths
Category: Principal judgment
Parties: Perpetual Trustees Victoria Limited (First plaintiff)
Challenger Financial Group Limited (Second plaintiff)
Ann Marie Menzies (First defendant)
BMC Mortgage Corporation Pty Limited (Second defendant)
Representation: Counsel:
G Sirtes SC & D Parish (First and second plaintiffs)
B Skinner & J Baird (First defendant)
G Curtin SC (Second defendant)
Solicitors:
Mills Oakley Lawyers (First and second plaintiffs)
Eakin McCaffery Cox (First defendant)
Gilchrist Connell (Second defendant)

File Number(s): 2007/263094

Judgment

Introduction

Ann Marie Menzies is sued by Perpetual Trustees Victoria Limited (Perpetual) pursuant to a mortgage and loan agreement allegedly entered into by her. (Challenger, earlier named Interstar, procured Perpetual's funds for the purpose of the advance; for present purposes it can be ignored.) Ms Menzies denies that she was party to either document. This judgment concerns Perpetual's action against Ms Menzies and her counterclaim against Perpetual. There is other connected litigation between Perpetual and Challenger Financial Services Group Limited on the one hand, and BMC Mortgage Corporation Pty Limited on the other, which will be the subject of a further hearing. BMC, called a mortgage originator, organises for Challenger (and, thence, Perpetual) to provide the funds. The party to 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 Perpetual Trustees Victoria Limited v Menzies

Details

AGLC: Perpetual Trustees Victoria Limited v Menzies [2012] NSWSC 1066
Case: [2012] NSWSC 1066
Decision Date: 10 September 2012

CaseChat Overview and Summary

Perpetual Trustees Victoria Limited and Challenger Financial Services Group Limited sued Ann Marie Menzies for possession of her home on the basis of default under s 58 of the Real Property Act 1900, as well as for a monetary judgment against her for her liability under the loan agreement. Menzies denied that she was party to either document. The court held that Menzies did not execute either loan agreement or mortgage or authorise their execution on her behalf, that she did not authorise the use of her Certificate of Title, and moreover that she never intended to personally borrow or be personally responsible either directly or by guarantee for the repayment of the moneys advanced and did not in any real sense obtain the benefit of any of the funds provided. The court found that Menzies was a victim of a complicated fraud certainly perpetrated by self-declared accountant Terrence Reddy, likely in concert to a greater or lesser extent with one Felix Lyle with whom he was closely associated. The court found that Menzies did not ratify or adopt the Perpetual loan and accordingly gave judgment for Menzies on the action brought by Perpetual and Challenger against her. The court also held that Menzies was not liable under either the mortgage or the loan agreement. The court noted that some ancillary orders may need to be made, and gave directions about this matter and as to costs after hearing from the parties.

Orders