Secure Funding Pty Ltd v Moon - [2012] QSC 244

SUPREME COURT OF QUEENSLAND

CITATION:

Secure Funding Pty Ltd v Moon & Anor [2012] QSC 244

PARTIES:

SECURE FUNDING PTY LTD
(plaintiff/first defendant by counter claim)
v
TANIA MAREE MOON
(first defendant/second plaintiff by counter claim)
and
GARRY ANTHONY MOON
(second defendant/first plaintiff by counter claim)
and
ASSURED CREDIT MANAGEMENT PTY LTD
(second defendant by counter claim)
and
PAUL EDWIN STEVENSON
(third defendant by counterclaim)
and
CONCATE PTY LTD
(fourth defendant by counterclaim)

FILE NO/S:

12291 of 2009

DIVISION:

Trial Division

PROCEEDING:

Claim

ORIGINATING COURT:

Brisbane

DELIVERED ON:

7 September 2012

DELIVERED AT:

Brisbane

HEARING DATE:

26 and 27 July 2012

JUDGE:

Peter Lyons J

ORDER:

[1]     The Plaintiff as mortgagee under registered mortgage no. 711147446 (Mortgage) recover possession of property at 731 Tomewin Mountain Road, Currumbin, Queensland, described in the Queensland Land Registry as Lot 7 on RP 149677, County of Ward, Parish of Tallebudgera, Title Reference 15458234 under section 78 of the Land Title Act 1994 (Qld);

[2]     The Defendants pay to the Plaintiff the amount of $1,057,916.83 being the amount owing as at 26 July 2012, plus interest on the amount of $1,057,916.83 at the rate of 11.65% per annum to the date of Judgment;

[3]     The Counterclaim of the First and Second Defendants be dismissed;

[4]     Costs are reserved.

CATCHWORDS:

TORTS – NEGLIGENCE – GENERAL MATTERS – where the first and second defendant entered agreement for the provision of mortgage broking services by the fourth defendant by counterclaim– where the fourth defendant by counterclaim, through the actions of the third defendant by counterclaim, applied on behalf of the first and second defendant for a loan from the plaintiff – whether the third defendant by counterclaim deliberately submitted false information in that application; completed the application without proper instructions; failed to advise the first and second defendants of their inability to service the proposed loan; or, failed to inform the first and second defendant that they were to be committed to a loan with a fixed term of three years and of the penalties for early payment under that loan – whether any duty owed to the first and second defendant was breached

TORTS - NEGLIGENCE - GENERAL MATTERS - where the fourth defendant by counterclaim, through the actions of the third defendant by counterclaim, applied on behalf of the first and second defendant for a loan from the plaintiff – where a stated income figure for the second defendant of $115,000 was declared on the application form – where this figure was untruthful – where the plaintiff approved the loan application and advanced $670,000 to the first and second defendant subject to a mortgage over the property of the first and second defendants – whether the plaintiff owed a duty to the first and second defendants to confirm their ability to repay the loan

CONTRACTS – PARTICULAR PARTIES – PRINCIPAL AND AGENT – CREATION OF RELATIONSHIP OF AGENCY – FORMATION AND PROOF OF AGENCY – IN GENERAL – where the fourth defendant by counterclaim,…

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 Secure Funding Pty Ltd v Moon

Details

AGLC: Secure Funding Pty Ltd v Moon [2012] QSC 244
Case: [2012] QSC 244
Decision Date: 7 September 2012

CaseChat Overview and Summary

Secure Funding Pty Ltd brought proceedings against the first and second defendants in the Queensland District Court, seeking possession of a property and the outstanding sum of $1,057,916.83 owed under a mortgage, plus interest. The first and second defendants counterclaimed against the third and fourth defendants, alleging that the third defendant, acting through the fourth defendant, had submitted false information in the loan application, failed to provide proper instructions, did not advise them of their inability to service the loan, and did not inform them of the loan's fixed term and penalties for early repayment. The first and second defendants also sought to establish an agency relationship between the third and fourth defendants and the plaintiff.

The court was required to determine whether the third defendant by counterclaim deliberately submitted false information in the loan application, whether the plaintiff owed a duty to confirm the first and second defendants' ability to repay the loan, and whether an agency relationship existed between the third and fourth defendants by counterclaim and the plaintiff. The court needed to assess if any duty owed to the first and second defendants was breached.

The court found that the third defendant by counterclaim did not deliberately submit false information in the loan application, as the untruthful income figure was provided by the second defendant. The court also found that the plaintiff did not owe a duty to confirm the first and second defendants' ability to repay the loan, as the loan was approved based on the information provided. The court further held that there was no evidence of an agency relationship between the third and fourth defendants by counterclaim and the plaintiff. Consequently, the first and second defendants' counterclaim was dismissed, and the court ordered the plaintiff to recover possession of the property and the outstanding sum owed under the mortgage, plus interest.

The court's final orders included the recovery of possession of the property by the plaintiff, payment of the outstanding sum owed under the mortgage plus interest, dismissal of the first and second defendants' counterclaim, and reservation of costs.

Orders

Orders of the court

[1] The Plaintiff as mortgagee under registered mortgage no. 711147446 (Mortgage) recover possession of property at 731 Tomewin Mountain Road, Currumbin, Queensland, described in the Queensland Land Registry as Lot 7 on RP 149677, County of Ward, Parish of Tallebudgera, Title Reference 15458234 under section 78 of the Land Title Act 1994 (Qld);

[2] The Defendants pay to the Plaintiff the amount of $1,057,916.83 being the amount owing as at 26 July 2012, plus interest on the amount of $1,057,916.83 at the rate of 11.65% per annum to the date of Judgment;

[3] The Counterclaim of the First and Second Defendants be dismissed;

[4] Costs are reserved.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Secure Funding Pty Ltd v Moon & Anor [2012] QSC 244
PARTIES:	SECURE FUNDING PTY LTD (plaintiff/first defendant by counter claim) v TANIA MAREE MOON (first defendant/second plaintiff by counter claim) and GARRY ANTHONY MOON (second defendant/first plaintiff by counter claim) and ASSURED CREDIT MANAGEMENT PTY LTD (second defendant by counter claim) and PAUL EDWIN STEVENSON (third defendant by counterclaim) and CONCATE PTY LTD (fourth defendant by counterclaim)
FILE NO/S:	12291 of 2009
DIVISION:	Trial Division
PROCEEDING:	Claim
ORIGINATING COURT:	Brisbane
DELIVERED ON:	7 September 2012
DELIVERED AT:	Brisbane
HEARING DATE:	26 and 27 July 2012
JUDGE:	Peter Lyons J
ORDER:	[1] The Plaintiff as mortgagee under registered mortgage no. 711147446 (Mortgage) recover possession of property at 731 Tomewin Mountain Road, Currumbin, Queensland, described in the Queensland Land Registry as Lot 7 on RP 149677, County of Ward, Parish of Tallebudgera, Title Reference 15458234 under section 78 of the Land Title Act 1994 (Qld); [2] The Defendants pay to the Plaintiff the amount of $1,057,916.83 being the amount owing as at 26 July 2012, plus interest on the amount of $1,057,916.83 at the rate of 11.65% per annum to the date of Judgment; [3] The Counterclaim of the First and Second Defendants be dismissed; [4] Costs are reserved.
CATCHWORDS:	TORTS – NEGLIGENCE – GENERAL MATTERS – where the first and second defendant entered agreement for the provision of mortgage broking services by the fourth defendant by counterclaim– where the fourth defendant by counterclaim, through the actions of the third defendant by counterclaim, applied on behalf of the first and second defendant for a loan from the plaintiff – whether the third defendant by counterclaim deliberately submitted false information in that application; completed the application without proper instructions; failed to advise the first and second defendants of their inability to service the proposed loan; or, failed to inform the first and second defendant that they were to be committed to a loan with a fixed term of three years and of the penalties for early payment under that loan – whether any duty owed to the first and second defendant was breached TORTS - NEGLIGENCE - GENERAL MATTERS - where the fourth defendant by counterclaim, through the actions of the third defendant by counterclaim, applied on behalf of the first and second defendant for a loan from the plaintiff – where a stated income figure for the second defendant of $115,000 was declared on the application form – where this figure was untruthful – where the plaintiff approved the loan application and advanced $670,000 to the first and second defendant subject to a mortgage over the property of the first and second defendants – whether the plaintiff owed a duty to the first and second defendants to confirm their ability to repay the loan CONTRACTS – PARTICULAR PARTIES – PRINCIPAL AND AGENT – CREATION OF RELATIONSHIP OF AGENCY – FORMATION AND PROOF OF AGENCY – IN GENERAL – where the fourth defendant by counterclaim,…