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Rogers v Rogers

Rogers v Rogers

Case [2020] NSWSC 392 9 April 2020

Mortgages & Security Interests

Property Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Rogers v Rogers [2020] NSWSC 392
Hearing dates: 24-25 March 2020
Date of orders: 09 April 2020
Decision date: 09 April 2020
Jurisdiction: Equity
Before: Darke J
Decision:
Separate questions answered adversely to plaintiff. Proceedings dismissed.

Catchwords: MORTGAGES AND SECURITIES – Charges – Equitable charge – Creation of charge – Loan Agreement and Charge records an agreement for the making of a loan – agreement not concerned with any other liability to lender – agreement executed by borrowers but not lender – lender does not otherwise become bound – loan the subject of agreement never made – no charge created
Legislation Cited: Bankruptcy Act 1966 (Cth), s 58(5)
Cases Cited: Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (2000) 202 CLR 588; [2000] HCA 25
Champion Homes Sales Pty Ltd v JKAM Investments Pty Ltd [2014] NSWSC 952
Elkofairi v Permanent Trustee Co Ltd (2002) 11 BPR 20,841; [2002] NSWCA 413
Garcia v National Australia Bank Ltd (1998) 194 CLR 395
Morris Finance Ltd v Free [2017] NSWSC 1417
National Provincial and Union Bank of England v Charnley [1924] 1 KB 431
Re Bank of Credit and Commerce International SA (No 8) [1988] AC 214
Roberts v Investwell Pty Ltd (in liquidation) [2012] NSWCA 134
Roberston v Grigg (1932) 47 CLR 257
Sibbles v Highfern Pty Ltd (1987) 164 CLR 214
Swiss Bank Corporation v Lloyds Bank Ltd [1982] AC 584
Yerkey v Jones (1939) 63 CLR 649
Category: Principal judgment
Parties: John William Rogers (Plaintiff/First Cross-Defendant)
Samantha Leanne Rogers (First Defendant/Cross-Claimant)
David Bruce Rogers (Second Defendant/Second Cross-Defendant)
Darren Falla (Third Defendant)
Gloria Rose Falla (Fourth Defendant)
Barry James Webster (Fifth Defendant)
Adam Shepard (Sixth Defendant)
Suncorp Metway Ltd (Seventh Defendant)
Representation:
Counsel:
Mr J M Ireland QC (Plaintiff/First Cross-Defendant)
Mr A D Crossland with Mr J Widjaja (First Defendant/Cross-Claimant)
Mr M Cobb-Clark (Second Defendant/Second Cross-Defendant)
Solicitors:
McGirr Lawyers (Plaintiff/First Cross-Defendant)
Pure Legal (First Defendant/Cross-Claimant)
O’Loughlin Westhoff (Second Defendant/Second Cross-Defendant)

File Number(s): 2018/371392
Publication restriction: None

Judgment

Introduction

The plaintiff in these proceedings, Mr John Rogers, claims to have an enforceable charge over a property in Maple Crescent, Ermington (“the Property”). The registered proprietor of the Property is the first defendant, Ms Samantha Rogers. Samantha Rogers is the former wife of the plaintiff’s older brother, Mr David Rogers. David Rogers is the second defendant. The third to seventh defendants are various parties who have, or by way of caveat claim to have, an interest in the Property.
The charge alleged by the plaintiff is said to arise from a document entitled Loan Agreement and Charge that was executed by Samantha Rogers and David Rogers in 2010. The instrument was apparently intended to be executed as well by John Rogers, but there is no evidence, and no suggestion, that he ever did so.
By his Statement of Claim, John Rogers alleges that in about May 2008 he agreed to lend Samantha and David Rogers the sum…

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 Rogers v Rogers

Details

AGLC: Rogers v Rogers [2020] NSWSC 392
Case: [2020] NSWSC 392
Decision Date: 09 April 2020

CaseChat Overview and Summary

Rogers v Rogers is a case concerning the creation of an equitable charge over property. The matter was heard in the Supreme Court of Queensland. The dispute involves a loan agreement and a charge document, which were executed by the borrower but not by the lender. The borrower sought to enforce the charge to secure a loan, which the lender contended was never made. The court was required to determine whether an equitable charge was created under the circumstances.

The primary legal issue before the court was whether an equitable charge was established over the property, despite the absence of execution by the lender. The court considered whether the loan agreement and charge document created a binding obligation on the lender and whether the charge was enforceable even though the loan was never made. The court had to balance the principles of contract law with those of equity to determine if the borrower's rights were sufficiently protected to create an equitable charge.

The court found that the loan agreement and charge document did not create a binding obligation on the lender as they were not executed by the lender. Consequently, the loan was never made, and no charge was created. The court held that an equitable charge could only be established if there was a binding agreement between the parties, which was not present in this case. The court emphasised that the lender's obligation to make the loan was not enforceable without their execution of the documents. Therefore, the borrower's claim to enforce the charge was unsuccessful.

The court ordered that the borrower's claim for enforcement of the equitable charge was dismissed. The court held that no equitable charge was created as the loan agreement and charge document did not bind the lender. Consequently, the lender was not liable to make the loan, and the borrower could not enforce the charge. The court's decision underscores the importance of proper execution of documents in creating binding obligations and the limitations of equitable charges in the absence of a valid agreement.

Orders