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Ribchenkov v Suncorp-Metway Ltd

Ribchenkov v Suncorp-Metway Ltd

Case [2000] FCA 835 21 June 2000

Unconscionable Conduct

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FEDERAL COURT OF AUSTRALIA
Ribchenkov v Suncorp-Metway Limited [2000] FCA 835
EQUITY – application to set aside mortgage – where bank reasonably believed that non-English speaking mortgagor had received adequate independent advice explaining the nature and extent of her obligations pursuant to impugned mortgage, but advice in fact inadequate – whether bank had a duty to disclose certain features of principal debtor’s financial circumstances to mortgagor - whether bank engaged in unconscionable conduct or undue influence, or took advantage of undue influence, in taking mortgage
EQUITY – where bank aware of special disability of mortgagor and her need for independent advice, but did not take steps to ensure that she was adequately advised in respect of further advances supported by the mortgage – whether unconscionable to permit bank to enforce remedies in respect of those advances
PRINCIPAL & AGENT – where principal debtor procures further surety required by creditor before granting loan – whether principal debtor acts on own behalf or as agent of creditor
TORTS – application for damages for fraud and negligence against solicitor – where mortgagor not adequately advised about the nature and extent of obligations – where, if adequately advised, mortgagor would not have entered agreement – whether solicitor negligent or fraudulent in provision of advice
INSURANCE – professional indemnity – where solicitor’s professional indemnity policy excluded indemnity for liability arising from fraud or dishonesty – whether liability for loss caused by provision of inadequate advice so arose
Trade Practices Act 1974 s 52, s 84 (2)
Garcia v National Australia Bank (1998) 155 ALR 614 cited
Alderton v Prudential Assurance Co (1993) 41 FCR 435 cited
Kings North Trust Ltd v Bell [1986] 1 WLR 119 cited
Platzer v Commonwealth Bank of Australia [1997] 1 QdR 266 cited
Lisciandro v Official Trustee in Bankruptcy (1995) ATPR 41436 at 40903 cited
Lisciandro v Official Trustee in Bankruptcy (1996) 139 ALR 689 cited
Barclays Bank Plc v O’Brien [1994] 1 AC 180 cited
Garcia v National Australia Bank Ltd (1998) 194 CLR 395 cited
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 cited
Yerkey v Jones (1939) 631 CLR 649 cited
Bridgewater v Leahy (1998) 158 ALR 66 cited
Barclays Bank plc v Thomson [1997] 4 All ER 816 cited
McNamara v Commonwealth Trading Bank (1984) 37 SASR 232 cited
ALEVTINA RIBCHENKOV v SUNCORP-METWAY LIMITED, SEBASTIAN ANTHONY SAPUPPO & AUSTRALIAN PACIFIC PROFESSIONAL INDEMNITY INSURANCE COMPANY LTD ACN 072 266 909
QG 33 OF 1997
SPENDER J
21 JUNE 2000
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QG 33 OF 1997

BETWEEN:

ALEVTINA RIBCHENKOV
Applicant/Cross Respondent to the Third Cross Claim

AND:

SUNCORP-METWAY LIMITED ACN 010 831 722
First Respondent/First and Third Cross Claimant

SEBASTIAN ANTHONY SAPUPPO
Second Respondent/Second Cross Claimant/Cross Respondent to the First Cross Claim

AUSTRALIAN PACIFIC PROFESSIONAL INDEMNITY INSURANCE COMPANY LTD ACN 072 266 909
Cross Respondent to the Second Cross Claim

JUDGE:

SPENDER J

DATE OF ORDER:

21 JUNE 2000

WHERE MADE:

BRISBANE

THE COURT DIRECTS:
That 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 Ribchenkov v Suncorp-Metway Ltd

Details

AGLC: Ribchenkov v Suncorp-Metway Ltd [2000] FCA 835
Case: [2000] FCA 835
Decision Date: 21 JUNE 2000

CaseChat Overview and Summary

The applicant sought to set aside a mortgage on the basis of undue influence, unconscionable conduct, and fraudulent misrepresentation. The bank had made an advance of $355,000 in reliance on a statutory declaration by the solicitor who had witnessed the signing of the mortgage, claiming that he had advised the applicant concerning the documents. The applicant claimed that she did not understand the nature and extent of the obligations she was entering into, and sought to set aside the mortgage. The bank cross-claimed against the solicitor, and the solicitor cross-claimed against his professional indemnity insurer, who had declined to provide indemnity on the basis that the claim arose out of fraud and dishonesty. The applicant's claims against the bank and the solicitor failed, except to the limited extent that the bank's enforcement of the mortgage in respect of two later advances would be unconscionable. The applicant's claim against the solicitor for negligence was successful, and the solicitor's claim against his professional indemnity insurer was also successful. The bank was entitled to recover the moneys secured and interest due and payable under the original loan account, and the applicant was awarded damages for negligence against the solicitor.

Orders