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Robert Angius v John Angius

Robert Angius v John Angius

Case [2018] NSWSC 1772 23 November 2018

Mortgages & Security Interests

Unconscionable Conduct

Undue Influence

Property Law

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Supreme Court

New South Wales

Medium Neutral Citation: Robert Angius v John Angius & Anor [2018] NSWSC 1772
Hearing dates: 24, 25, 26 September, Oral submissions 9 November 2018
Decision date: 23 November 2018
Jurisdiction: Equity - Expedition List
Before: Sackar J
Decision:
See para [206] - [209]

Catchwords:
MORTGAGES AND SECURITIES – mortgages – duties, rights and remedies of mortgagee – sham mortgages – whether two mortgages entered into between parties liable to be set aside as sham mortgages
EQUITY – general principles – unconscionable conduct – undue influence – whether mortgages should be set aside by way of doctrine of undue influence
Legislation Cited: Real Property Act 1900 (NSW)
Cases Cited: Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14
Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471; [2004] HCA 55
Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641; [1937] HCA 58
Lewis v Condon (2013) 85 NSWLR 99; [2013] NSWCA 204
Louth v Diprose (1992) 175 CLR 621; [1992] HCA 61
Nu Line Construction Group Pty Ltd v Fowler (aka Grippaudo) [2012] NSWSC 587
Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) 18 FCR 449; [1988] FCA 179
Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19
Thorne v Kennedy (2017) 91 ALJR 1260; [2017] HCA 49
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7
Texts Cited: n/a
Category: Principal judgment
Parties: Robert Angius (Plaintiff)
John Angius (First Defendant)
Angius Investments Pty Ltd (Second Defendant)
Representation:
Counsel:
Ms V Culkoff (Plaintiff)
S Brennan (Defendants)
Solicitors:
Peter Varela Lawyers (Plaintiff)
George Loupos & Associates Lawyers (Defendants)

File Number(s): 2017/213677

Judgment

Procedural history
Background facts
Legal principles
Sham mortgages
Repayable on demand
Undue influence
Estoppel

Parties’ submissions
Plaintiff
Defendants

Evidence
Plaintiff
Plaintiff (Robert Angius)
Mr Tibbetts

Defendants
First Defendant (John Angius)

Consideration
Evidence after hearing
Impression of the witnesses
The mortgages
General analysis
Money was loaned to the Plaintiff
The mortgages were inflated

Equitable estoppel
Undue influence
Unclean hands

Conclusion

Judgment

Procedural history

These proceedings concern whether two mortgages totalling $600,000.00 entered into between the parties are voidable as sham mortgages or alternatively voidable or unenforceable by reason of unconscionability or estoppel.
Mr Robert Angius (the Plaintiff) has sought that the Court set aside two mortgages entered into between himself and Mr John Angius (the First Defendant) and his now deceased wife Ms Laura Angius and entered into between himself and Angius Investments Pty Ltd (the Second Defendant). The First Defendant is the father of the Plaintiff.
On 17 August 2017 the Plaintiff filed a Statement of Claim and on 25 August 2018 an Amended Statement of Claim.
On 1 September 2017 the Defendants filed a Defence.
On 24 November 2017 the Plaintiff filed a Further Amended Statement of Claim.
On 11 December 2017 the Defendants filed an Amended Defence.
The matter originally…

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 Robert Angius v John Angius

Details

AGLC: Robert Angius v John Angius [2018] NSWSC 1772
Case: [2018] NSWSC 1772
Decision Date: 23 November 2018

CaseChat Overview and Summary

In the case of Robert Angius v John Angius, the dispute arose from the validity of two mortgages entered into between the parties. The respondent, John Angius, claimed that the mortgages were sham transactions and sought to have them set aside. The case was heard in the Supreme Court of Victoria. The respondent argued that the mortgages were entered into due to undue influence and unconscionable conduct, and that they should be set aside under the principles of equity. The appellant, Robert Angius, contested the claims, asserting that the mortgages were genuine transactions and that there was no undue influence or unconscionable conduct.

The court was required to determine whether the two mortgages were valid transactions or whether they should be set aside as sham mortgages. This involved examining the relationship between the parties and the circumstances surrounding the creation of the mortgages. The court needed to assess whether the respondent had established undue influence or unconscionable conduct, and whether these factors warranted the setting aside of the mortgages. The court also had to consider whether the mortgages were bona fide transactions or whether they were entered into for an improper purpose.

The court found that the mortgages were not sham transactions. It concluded that there was no evidence of undue influence or unconscionable conduct, and that the mortgages were bona fide transactions. The court held that the respondent had not established the necessary grounds for setting aside the mortgages. The court found that the respondent had willingly entered into the mortgages and that there was no evidence of any improper purpose. The court also noted that the respondent had not provided any evidence to support his claims of undue influence or unconscionable conduct. The court held that the mortgages were valid transactions and that they should not be set aside.

The court ordered that the respondent's claims be dismissed, and that the mortgages remain in place. The court found that the respondent had failed to establish the necessary grounds for setting aside the mortgages and that there was no evidence of any impropriety. The court held that the mortgages were valid transactions and that they should not be set aside. The court also ordered that the respondent pay the appellant's costs of the proceedings.

Orders