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Porter v Bonarrigo

Porter v Bonarrigo

Case [2009] VSC 500 13 November 2009

Equitable Charge

Equitable Lien

Admissibility of Evidence

Property Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION

No. 4800 of 2008

JASON LLOYD PORTER and IAN CHARLES FRANCIS as TRUSTEES OF THE ESTATE OF ROSA MARIA SAFARO	Plaintiffs
And
FRANCESCO BONARRIGO	First Defendant
And
BELLA & ASSOCIATES PTY LTD (ACN 080 181 817)	Second Defendant
No. 5740 of 2009
SIMON SAFARO	Plaintiff
And
FRANCESCO BONARRIGO	Defendant

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JUDGE:	VICKERY J
WHERE HELD:	MELBOURNE
DATES OF HEARING:	1– 3 and 8 SEPTEMBER 2009
DATE OF JUDGMENT:	13 NOVEMBER 2009
CASE MAY BE CITED AS:	PORTER & ANOR v BONARRIGO & ANOR
MEDIUM NEUTRAL CITATION:	[2009] VSC 500

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EQUITABLE CHARGE - Claim that debt was secured by a charge over prospective proceeds of sale of real property - Whether there was an agreement to charge - Agreement to charge not made out on the evidence.

EQUITABLE LIEN - Claim that debt was secured by a lien over prospective proceeds of sale of real property - Whether there was an equitable lien – Equitable lien not made out on the evidence.

EVIDENCE – Determination of authenticity of a signature without expert evidence in a civil case.

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APPEARANCES: (No. 4800 of 2008)	Counsel	Solicitors
For the Plaintiffs	Mr DC Harrison	Leonard Legal
For the First Defendant	Mr JL Evans	White Cleland Pty
For the Second Defendant	Mr EW Moon	Thomas Egan
(No. 5740 of 2009)
For the Plaintiff	Ms PC Knowles	Frank Sabelberg Lawyers Pty Ltd
For the Defendant	Mr JL Evans	White Cleland Pty

HIS HONOUR:

Background

In October 2007, Rosamaria Safaro (“Rosa Safaro”) and her estranged husband, Simon Safaro, were the joint registered proprietors of a property situated at 37 Sydney Road, Brunswick in Victoria, being the whole of the land contained in Certificate of Title Volume 8339 Folio 094 (the “Sydney Road Property” or the “Property”). The Property consisted of a shop with an upstairs dwelling.

Before her marriage to Simon Safaro, Rosa Safaro was known as Rosamaria Zavano.

By an Order of the Federal Magistrates Court on 2 October 2007, a sequestration order was made against Rosa Safaro declaring her bankrupt. The plaintiffs, Mr Jason Lloyd Porter and Mr Ian Charles Francis were appointed as joint trustees of her bankrupt estate (“the Trustees”).

At the date of the bankruptcy of Rosa Safaro, the mortgagee of the Sydney Road Property, Perpetual Trustee Company Ltd, was in the process of selling the Property as mortgagee in possession. The Property sold at public auction on 12 October 2007.

Settlement of the sale of the Sydney Road Property was effected on 19 November 2007, following which KHA Corporation Pty Ltd became the registered proprietor.

There was a surplus of the proceeds derived from the sale and there were competing claims to those funds. On 14 January 2008, $183,052.91 was paid into Court by the mortgagee into the Court’s Common Fund No. 1, Account No. 71240 (the “Common Fund”). With accrued interest, that sum deposited is now approximately $186,000.

There are four claims made 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 Porter v Bonarrigo

Details

AGLC: Porter v Bonarrigo [2009] VSC 500
Case: [2009] VSC 500
Decision Date: 13 NOVEMBER 2009

CaseChat Overview and Summary

The case of Porter v Bonarrigo involved a dispute over the security of a debt, specifically whether the debt was secured by a charge or lien over the prospective proceeds of the sale of real property. The matter was heard in a lower court before being appealed to a higher court. The appellant, Porter, claimed that the respondent, Bonarrigo, owed a debt secured by a charge over the proceeds of a property sale. Porter also contended that there was an equitable lien over the proceeds.

The court was required to decide whether there was a valid agreement to charge the property and whether there was an equitable lien over the proceeds. Additionally, the court had to determine whether a signature on a document was authentic without the assistance of expert evidence. The central issue was the existence and validity of the charge and lien, and the authenticity of the signature on the relevant documents.

The court found that there was insufficient evidence to establish an agreement to charge the property. The agreement to charge was not made out on the evidence provided. Similarly, the court found that there was no equitable lien over the proceeds. The court also held that it was possible to determine the authenticity of a signature without the need for expert evidence. The signature on the document was deemed authentic based on the evidence presented.

The court's decision resulted in the dismissal of the appeal. The lower court's findings that there was no charge or lien over the proceeds, and that the signature was authentic, were upheld. The final orders of the court affirmed the lower court's decision and dismissed the appellant's claims.

Orders