Sibonna Nominees Pty Ltd v Vouzas
[2013] VSCA 369
•18 December 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2011 0110
| SIBONNA NOMINEES PTY LTD | Appellant |
| v | |
| EVANGELOS VOUZAS AND CHRISTINA VOUZAS | Respondents |
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| JUDGES | WARREN CJ, TATE JA and KYROU AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 28 February 2013 |
| DATE OF JUDGMENT | 18 December 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 369 |
| JUDGMENT APPEALED FROM | Vouzas and anor v Sibonna Nominees Pty Ltd [2011] VSC 261 (Ferguson J) |
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MORTGAGES – Appeal – Where monies not advanced to mortgagors but to son – Where no separate loan agreement or guarantee – Whether money secured by mortgage – Whether mortgagors estopped from denying mortgage secured money – Whether covenant in mortgage enforceable as unsecured debt – Construction of mortgage – Meaning of ‘credit’ in Consumer Credit (Victoria) Code – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr DJ Williams SC with Mr I Upjohn | Lewenberg & Lewenberg |
| For the Respondents | Mr PD Corbett | Harrick Lawyers |
WARREN CJ:
The appellant, Sibonna Nominees Pty Ltd, appeals a judgment of a judge of the Trial Division[1] finding that it wrongfully exercised its power of sale as mortgagee over two commercial properties owned by the respondents, Mr and Mrs Vouzas, in Albert Park.
[1]Vouzas and anor v Sibonna Nominees Pty Ltd [2011] VSC 261 (‘Reasons’).
Background
The appellant is in the business of lending money. Sometime before 2007, the appellant started lending money to the respondents’ son, Steven Vouzas, which was duly repaid. From around November 2007, the appellant started lending money to the respondents’ son and his company, Speck Projects Pty Ltd. By August 2008 the principal amount owing on these loans was $600,000. The appellant sought security for the principal and interest owing on the loans and the respondents’ son arranged for the respondents to execute a mortgage in favour of the appellant over two properties owned by the respondents in Albert Park. The mortgage was dated 25 August 2008 and was subsequently registered on 4 September 2008.
The form of the mortgage was a cover sheet and a separate Memorandum of Common Provisions (‘MCP’). Clause 5.1 of the MCP provided that the mortgage secured all money owing by the respondents under a credit contract or related guarantee. ‘Credit Contract’ was defined in the MCP with reference to the Consumer Credit Code (‘the Code’). The cover sheet recited that the mortgage was given for valuable consideration and was for the purposes of securing the payment of the amount owing by the respondents to the appellant. In the ‘stamp duty use only’ section of the cover sheet it was recited that ‘[t]he amount advanced pursuant to this Mortgage was $500,000.00’.
Following the registration of this mortgage the appellant lent a further $700, 000 to the respondents’ son and/or Speck Projects. The respondents’ son arranged for a Variation of Mortgage dated 15 February 2009 to be signed by the respondents which purported to increase the value of the appellant’s security to $1.3 million. This document was pivotal to the appellant’s submissions. I will refer to it as the variation.
The variation referred to the appellant’s agreement to increase the principal sum from $500,000 to $1.3 million and recited that the respondents ‘shall repay the sum of $1,300,000.00 on or before 1 October 2009 however they will use their best endeavours to reduce the sum substantially beforehand’ (my emphasis).
The appellant did not deal directly with the respondents in relation to either the mortgage or its variation but rather dealt with the respondents’ son at all times.
The money owed by the respondents’ son and/or Speck Projects was not repaid to the appellant. The appellant entered into possession of the Albert Park properties in March 2010 and sold the properties on 20 May 2010 as mortgagee pursuant to s 76 of the Transfer of Land Act. The National Australia Bank, as first mortgagee, took some of the proceeds and the balance was paid to the appellant along with rent received after entering into possession.
The respondents sued the appellant in the Trial Division for wrongful exercise of a power of sale as mortgagee. The respondents sought declaratory orders that the proceeds of sale were held on trust for their benefit and claimed further loss and damage, including rent received by the appellant from tenants and commissions paid to the estate agent who sold the Albert Park properties.
Before the trial judge, it was common ground that the terms of the mortgage incorporating the MCP were manifestly inappropriate for the transaction. It was also common ground that, at the time the mortgage was executed, there was no separate document that could meet the definition of a credit contract and that no monies had been advanced to the respondents.
Prior to the trial, the respondents had sought an injunction to prevent the auctions proceeding. The case asserted at that time was that the mortgages were obtained by unconscionable conduct. During a later application for an injunction, and at trial, the respondents abandoned that argument and adopted two different arguments. First, the respondents relied on the terms of the MCP, contending that no money had been secured by the mortgage because there was no underlying loan agreement, credit contract or guarantee in existence. Secondly, they argued that they had not offered the properties as security for the loan made to their son, therefore, the mortgage was a nullity.
Whilst the appellant conceded that if no money was secured by the mortgage, there was no entitlement to sell the mortgaged properties, it relied on the stamp duty notation on the mortgage cover sheet which recited that ‘[t]he amount advanced pursuant to this Mortgage was $500,000.00’. The appellant also asserted that the variation amounted to a credit contract as contemplated in the MCP. It further claimed that the respondents had authorised their son to arrange the mortgage and that they had acknowledged the debt through two documents their son had signed.[2]
[2]The documents relied upon were a document signed by Steven Vouzas, the respondents’ son, dated 20 December 2008 titled ‘Agreement between Sibonna nominees Pty Ltd and Steven Vouzas.’ This document is set out in the reasons of the trial judge at para [30]. The other is an email dated 22 January 2009 from the respondents’ son to Sibonna’s solicitor. In that email the respondents’ son requested preparation of new documents to vary the existing loan secured by the Albert Park properties by increasing the amount advanced to $1.3 million. He confirmed that the money had been fully advanced by Sibonna. He stated that ‘we expect the above loan will be repaid over the next two/three months’ (see the reasons of the trial judge at para [39]).
The appellant filed a counter-claim for the debt in the alternative, claiming that because the mortgage was a deed, the respondents were estopped from denying that they had acknowledged the loan, that the mortgage was given for valuable consideration and that the mortgage secured an obligation to repay money. Also in the alternative, the appellant argued that by signing the variation, the respondents incurred an express obligation which was subsequently breached. Underpinning this argument, the appellant submitted that there was an express or implied agreement that in consideration for the appellant forbearing to immediately exercise rights against the respondents’ son, the respondents would be jointly liable, either as joint principals or guarantors.
Relevant findings of the trial judge
The trial judge heard evidence from both Mr and Mrs Vouzas and from Mrs Wolfers, the director of Sibonna Nominees, on behalf of the appellant. In addition, various emails were tendered before her Honour in relation to the advances. The trial judge made various findings of fact in relation to the circumstances in which the transaction was entered into.
In relation to the circumstances of the transaction, the trial judge found that:
61Up until the time when Sibonna sought to enforce the mortgage, all of the communication about the moneys advanced was between Mrs Wolfers, on behalf of Sibonna, and Steven Vouzas. Mrs Wolfers never spoke to Mr and Mrs Vouzas about the mortgage or the variation before they were signed.
…
93The mortgage and variation were executed in circumstances where moneys had been advanced to Steven Vouzas or his company and where the purpose of the mortgage given by Mr and Mrs Vouzas was to secure his obligation to repay those moneys.
…
108I do not draw the inference from the evidence that Mr and Mrs Vouzas gave their son express actual authority to act on their behalf in dealings with Sibonna, nor the inferences urged on me that they agreed to give a mortgage and agreed to be liable in respect of the advances made by Sibonna to Steven Vouzas.
The trial judge also made findings as to the extent to which these surrounding circumstances were known to the respondents:
56Mr and Mrs Vouzas understand the concept of a mortgage and have from time to time borrowed money from other lenders secured by a mortgage. As noted above, there was the first registered mortgage in favour of National Australia Bank Limited over the Albert Park properties when the second mortgage was registered in favour of Sibonna.
…
109It is true that Mr and Mrs Vouzas resiled from their evidence that their son told them that he had given them the mortgage and variation to sign. Their evidence in this regard was not credible. In particular, the assertions by Mrs Vouzas that she did not know who had written her affidavit and that what was contained in it was not correct lacked credibility. The affidavit had been translated to her by her daughter. Similarly, the assertions by Mr Vouzas that he still did not know how they came to sign the mortgage and variation and that he thought this case was about finding out the answer to that question beggar belief, particularly in circumstances where their counsel opened the case on the basis that the mortgage documents were presented to them by their son who witnessed their signatures. This is a close knit family. Mr and Mrs Vouzas knew that their son had business dealings with Mrs Wolfers; other than what might be described as social pleasantries, they did not have direct dealings with Mrs Wolfers; it was Mrs Wolfers (in effect) who was auctioning the Albert Park properties; their signatures appeared on a mortgage over those properties. The only logical explanation for how the mortgage came to be signed is one that involves their son and they must have challenged him to explain to them how this all came about. I do not accept their evidence that they do not know that it was their son who gave them the mortgage and variation to sign. However, that does not lead me to infer that they must have expressly authorised him in the manner contended for by Sibonna.
…
114However, I do accept their [the respondents’] evidence that they did not intend to give a mortgage over the Albert Park properties.
In the trial judge’s reasons, her Honour focused on three questions:[3]
1. Was any amount secured by the mortgage without a separate loan agreement or guarantee? If not, then
2. Was there an underlying agreement or acknowledgement of the debt by the Vouzas’? and
3. Were the Vouzas’ estopped from denying the debt to Sibonna?
[3]Reasons [6].
The trial judge answered all three questions in the negative. The trial judge found that the mortgage and variation secured no money since there was no credit contract. Her Honour held that the variation was not an agreement under which the appellant provided the respondents with credit.[4] Her Honour also determined the variation did not constitute a guarantee. As there was no credit contract or related guarantee that could give rise to liability on the part of the respondents, no default occurred and, therefore, the appellant had not been authorised to serve notice under s 76(1) of the Transfer of Land Act.[5]
[4]Reasons [100].
[5]The conditions precedent to the exercise of the power of sale in general, and the service of notice under s 76(1) in particular, are comprehensively set out by the learned authors in Clyde Croft and Robert Hay, The Mortgagee’s Power of Sale (LexisNexis, 3rd ed, 2013) 47-63.
In relation to the second question, the trial judge held that there was no underlying agreement or acknowledgement of debt, for three reasons. First, since the respondents did not intend to give a mortgage over their Albert Park properties[6]; secondly, because there was no certainty as to the terms of any such agreement[7]; and thirdly, because the requirements of s 126 of the Instruments Act were not met.[8]
[6]Reasons [114].
[7]Reasons [115].
[8]Reasons [116]; see also s 126 of the Instruments Act which provides:
Section 126: Certain agreements to be in writing.
(1) An action must not be brought to charge a person upon a special promise to answer for the debt, default or miscarriage of another person or upon a contract for the sale or other disposition of an interest in land unless the agreement on which the action is brought, or a memorandum or note of the agreement, is in writing signed by the person to be charged or by a person lawfully authorised in writing by that person to sign such an agreement, memorandum or note.
In relation to the third question concerned with estoppel, her Honour held that even if, at its highest, the respondents were estopped from denying that the appellant agreed to increase the principal sum and that the mortgage was given for valuable consideration, it was still open to the respondents to argue the mortgage secured no money because there was no credit contract or related guarantee.[9]
[9]Reasons [121].
The trial judge concluded that the appellant’s counter-claim for the $1.3 million as an unsecured debt failed because of the absence of an enforceable agreement between the appellant and respondents.[10]
[10]Reasons [125].
Thus the trial judge concluded that power of sale was not authorised.
The appeal
The appellant urged eight grounds of appeal. They can be summarised into three key submissions:
1. That the variation of the mortgage was a credit contract;
2. That the variation of the mortgage created an estoppel by deed; and
3. That the counter-claim was wrongfully dismissed.
I will deal with each of these submissions in turn.
Was the variation of the mortgage a credit contract?
The trial judge accepted that the respondents, having signed the mortgage and variation, are bound by their terms as they did not claim that they were induced to sign by fraud, mistake or misrepresentation, nor did they seek rectification or rely on allegations of unconscionability or non est factum. Her Honour also accepted that no consideration was necessary as the mortgage was a deed.
The trial judge held, however, that as a matter of construction, no money was secured by the mortgage because at the time that the mortgage was executed there was no separate document which could be considered a credit contract. Her Honour held that the notation in the box marked ‘stamp duty’ on the cover sheet of the mortgage did not amount to a term of the mortgage and did not constitute a credit contract between the appellant and respondents.[11] Her Honour further held that the variation did not constitute a credit contract on the basis that the variation was not an agreement whereby the appellant provided the respondents with credit, nor did it constitute a guarantee.[12]
[11]Reasons [94].
[12]Reasons [100].
It was accepted on appeal that, arising from the MCP, any money secured by the mortgage must have been owed by the respondents to the appellant under a credit contract. The term credit contract is defined in the MCP as ‘any agreement (whether entered into now or in the future) in which we provide you with credit (as defined in the Consumer Credit Code).’ ‘We’ refers to the appellant and ‘you’ refers to the respondents. The Court’s attention was drawn to s 4(1)(b) of the Code in relation to the definition of credit. That section relevantly provides:
4 Meaning of credit and amount of credit
(1) For the purposes of this Code, credit is provided if under a contract-
…
(b) one person (the debtor) incurs a deferred debt to another (the credit provider).
The appellant submitted on appeal that the variation meets the definition of a credit contract because it contains the covenant ‘[t]he mortgagors shall repay the said sum of $1,300,000 on or before 1 October 2009…’. The appellant submitted that the variation created an unconditional obligation on the respondents to pay a certain sum by a certain date in the future. As such, the respondents incurred a deferred debt within the meaning of ‘credit’ in s 4(1)(b) of the Code. It submitted that the trial judge erred in finding that the agreement was uncertain, since the express terms of the variation were not uncertain and there was no need to go beyond those terms to construe the agreement.
The appellant submitted that the definition of ‘credit’ should be interpreted broadly in line with its purpose of consumer protection and relied on the statement of Bell J in Geeveekay Pty Ltd v Director of Consumer Affairs that s 4(1)(b) of the Code ‘picks up all cases where a contract creates a definite present obligation to pay an unavoidable and ascertainable amount in the future.’[13]
[13](2008) 19 VR 512, [58].
The appellant further submitted that, despite acknowledging the principle that commercial documents (such as the mortgage and the variation) should not be construed so as to have no effect or force whatsoever when an alternative construction is reasonably open[14], the trial judge failed to apply the principle. The appellant contended that had her Honour applied the principle then she should have upheld the appellant’s construction unless she held that it was not reasonably open. It further submitted that her Honour should not have ignored the statement in the ‘stamp duty use only’ box on the mortgage cover sheet which provided ‘[t]he amount advanced pursuant to this Mortgage was $500,000.00’ and that her Honour erroneously applied the contra proferentem rule when there was no ambiguity in the relevant documents as only one, plain, construction gave the documents commercial effect.
[14]See Reasons [89], [92] which cite Fitzgerald & Anor v Masters (1956) 95 CLR 420 and Westpac Banking Corporation v Tanzone Pty Limited [2000] NSWCA 25.
The respondents submitted that by virtue of the natural and ordinary meaning of the words used in the mortgage and variation, the obligation to pay, if it arose, was one in respect of moneys actually advanced by the appellant to the respondents pursuant to a credit contract. The respondents submitted that the trial judge did not fail to give force and effect to the documents but correctly held that in the absence of a binding obligation to pay the money, the mortgage and variation secured no debt. The respondents submitted that an obligation to repay comprehends ‘the payment back or return of money’[15] and in order for ‘credit’ to be provided there must be a creditor/debtor relationship, which did not obtain between the appellant and respondents in this case. They submitted that even if the relevant section of the Code should be interpreted broadly, it should not be permitted to have an operation which the Parliament did not intend. Finally, the respondents contended that it would be uncommercial and tortuous to construe the statement in the ‘stamp duty use only’ box as constituting evidence of an advance which did not exist.
[15]American Express International Inc v Commissioner of State Revenue (2004) 10 VR 145, [19] (Charles JA).
The appellant further submitted that although it may have been contemplated that the agreement that creates the obligation to pay is contained in a document separate to the mortgage or variation, this was not required under cl 6.1. The appellant submitted that nothing in cl 6.1 foreclosed the possibility that the agreement that creates the obligation to pay is the mortgage itself and argued that, even if the Court was of the view that the notation in the stamp duty box did not creates an obligation to pay, the covenant in the variation could fulfil this role.
In my view, the trial judge was plainly correct to hold that the notation in the box marked ‘stamp duty’ on the cover sheet of the mortgage is not sufficient to give rise to an obligation on the part of the respondents to pay that amount to the appellant. Significantly, it says nothing about the time for payment.
The question whether the variation created an enforceable obligation on the part of the respondents to pay the appellant $1.3 million which in turn constitutes a credit contract is a question of construction. It is clear that the parties intended that the variation would not result in a termination of the original mortgage, but rather would only vary the existing mortgage. In this case, the variation of the existing mortgage was to occur by the addition of new words into the mortgage. Accordingly, the mortgage must now be viewed as containing the words incorporated by the variation.
The trial judge identified the applicable principles of construction as follows:[16]
Courts adopt an objective approach in construing the terms of an agreement by determining what a reasonable person would have understood them to mean in the circumstances.[17] This normally requires consideration not only of the text, but the surrounding circumstances known to the parties and the purpose and object of the transaction.[18] The whole of the contract must be considered.[19]
[16]Reasons [89].
[17]Toll (FGCT) Pty Limited v Alphapharm Pty Limited and Ors (2004) 219 CLR 165 at 179; Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at 462.
[18]Ibid.
[19]Australian Broadcasting Commission v Australasian Performing Right Association Limited (1973) 129 CLR 99 at 109.
These principles were not challenged on appeal and no issue was taken to applying these contractual principles of construction to the interpretation of the deed. Indeed, this Court held in MBF Investments Pty Ltd v Nolan that the fact that the relevant clauses to be construed ‘appear in the Deed, rather than an ordinary contract, is of no consequence. The principles of construction are the same.’[20] The Court noted:
A deed is, after all, merely one form of contract. Its particular significance lies in the fact that any covenants contained within it are enforceable even if unsupported by consideration.[21]
[20][2011] VSCA 114 [194].
[21][2011] VSCA 114, n 200.
Any difficulty in construing the obligation here lies in the word ‘repay.’ The word, is defined to mean ‘to pay back or refund (money etc),’[22] yet it was common ground that no money was ever advanced to the respondents. Moreover, it was not expected that any money would be advanced in the future. At trial, counsel for the respondents contended that the use of the word ‘repay’ presupposed the making of an advance to Mr and Mrs Vouzas. In the absence of such an advance, they submitted, there is nothing to repay. In support of this submission, counsel for the respondents relied on the decision in American Express International Inc v Commissioner of State Revenue[23] where Charles JA (with whom Chernov JA and Hansen AJA agreed) held:
It must accordingly be given its ordinary and natural meaning, which, to my mind, comprehends the payment back or return of money. The judge in the passage I have already cited, found that the use of the term "repayment" was apt to describe the payment made by a cardholder to the appellant under the terms of the cardholder agreement. But neither the underlying contractual scheme nor the terms of the cardholder agreement involve the advance of money to, or on behalf of, the cardholder by Amex. The question then is whether the payments made by the cardholder in discharge of the contractual obligation to Amex can constitute a repayment. It seems to me that in these circumstances the liability of the cardholder to Amex cannot be characterised as being in the nature of an obligation to make "repayment", there being nothing to repay.[24]
[22]Macquarie Concise Dictionary, 4th ed.
[23](2004) 10 VR 145.
[24](2004) 10 VR 145 [19].
At the outset it is significant that the appellant conceded that no monies were provided by the appellant, as mortgagee, to the respondents, as mortgagors. The mortgage documents fall to be construed in light of this concession.
Clause 6.1 of the MCP provided:
You must pay us the secured money at the time and in the way set out in the agreement that creates your obligation to pay us the secured money.
Thus, the respondents, as mortgagors were bound to pay to the appellant as mortgagee, the ‘secured money’ at the time and in the manner provided in the agreement that actually created the obligation to pay or repay the ‘secured money’. Relevantly, Clause 5.1 provided that ‘secured money’ is money owed by the mortgagor to the mortgagee under a credit contract or related guarantee.
Clause 6.1 of the MCP contemplated that the obligation to pay does not in fact arise under the mortgage document but under another agreement. Clause 5.1 supports that construction.
Here, there was no related guarantee, thus the only ‘secured money’ that could be identified would be money arising under a credit contract. Clause 50(1)(f) of the MCP defined ‘credit contract’ as: ‘any agreement … in which [the mortgagee] provides [the mortgagor] with credit (as defined in the Consumer Credit Code).’
The Code provides ‘credit’ is provided under a contract if one or two events occurs. Either, payment of a debt owed by one person (the debtor) to another (the credit provider) is deferred; or, one person (the debtor) incurs a deferred debt to another (the credit provider). In other words, the Code contemplates a creditor providing a new loan to a debtor or deferring a loan already owed.
Counsel for the appellant submitted that nothing in the text of s 4(1) of the Code required that money had been advanced to the mortgagor. Rather, the appellant submitted that the definition of credit focused on the obligation incurred by the mortgagor, not on the provision of a loan, or the deferral of the time for its payment by the mortgagee. It submitted that the respondents, by signing the variation of mortgage, assumed a future obligation to pay and by doing so incurred and deferred a debt.
The submission should not be accepted. Section 4(1) of the Code speaks in terms of credit being provided. In my view, the appellant strains the statutory language too far by its submission that a deferred debt within the meaning of the Code may be incurred by a party to whom nothing has been provided.
At the time the mortgage was executed there was no ‘secured money’ because no credit contract or related guarantee was in existence. The variation could not be construed as a credit contract under section 4.1 of the Code because it did not constitute an agreement in which the mortgagee provided the mortgagor with credit in the sense of providing a new loan to the mortgagor or deferring a loan already owed by the mortgagor.[25]
[25]As necessary by virtue of cl 5.1.
In any case, even on the appellant’s preferred construction of s 4(1) of the Code, I do not consider that the respondents have assumed an obligation to pay and, by doing so, incurred a debt. The variation was not intended to be a stand-alone document capable of enforcement independent from the mortgage. The variation was plainly to have effect by way of amendment to the mortgage. The mortgage was to continue as the primary document. In any event, the amendments sought to be effected to the mortgage by the variation were ineffectual because of the use of the expression ‘principal sum’. The term does not appear in the mortgage. Thus, even after the variation there was no ‘secured money’ owing under the mortgage.
The appellant submitted that it did not matter whether the word ‘pay’ or ‘repay’ was used. It was put by the appellant at trial that when a person agrees to repay money, which has in fact not been lent to that person but to another, the person is taking on with the other a joint obligation so that, in effect, they are joint borrowers rather than a borrower and a surety.[26]
[26]See Reasons [96].
When one steps back and reflects on the expression to ‘repay’ and the facts in this matter, the meaning is plain and no ambiguity is discernible. It remains that no money was advanced to the respondents. It would be wholly artificial, indeed would subject the word ‘repay’ to a tortuous interpretation to say otherwise.
For completeness, I observe that the variation did not constitute a guarantee because pursuant to its terms the mortgagor did not agree to guarantee the liability of a debtor under a credit contract (as required under cl.50.1(u)).[27]
[27]This clause provides that: ‘related guarantee means a guarantee or guarantee and indemnity (entered into now or in the future) in which you guarantee or guarantee and indemnify us concerning a debtor’s liabilities under a credit contract.’
It follows that the appellant’s first head of argument fails.
Did the variation of the mortgage create an estoppel by deed?
Turning to the second head of argument concerned with estoppel, Her Honour, citing Greer and Kettle[28] accepted that:
A solemn and unambiguous statement in a deed must be taken as binding between the parties so that it does not admit any contradictory proof.[29]
[28]Greer v Kettle [1938] AC 156, 171.
[29]Reasons [119].
The appellant sought to rely on this principle, together with the covenant in the variation, in support of the submission that the respondents were estopped from denying that the mortgage was given for valuable consideration and secured an obligation on their part to repay $1.3 million. The appellant submitted that once the respondents gave their solemn promise, it was of no moment whether any money was in fact advanced to them.
The trial judge held that even if the covenant in the variation was to be taken at its highest, the respondents were only estopped from denying that the principal sum secured by the mortgage had been increased and the mortgage was given for valuable consideration. Neither prevented the respondents from arguing that the mortgage secured no money.[30]
[30]Reasons [121].
The appellant submitted that this failed to give real meaning and effect to the relevant words of the variation. It submitted that the only sensible meaning that can be given to the words is that there is an agreement that the sum secured by the mortgage has increased from $500,000 to $1.3 million and further, or alternatively, from the date of the execution of the variation the sum the mortgage secured was $1.3 million.
In oral submissions, the appellant submitted that nothing pleaded, proved or found by the trial judge enlivened the principles in Greer v Kettle, which were relied on by the respondents in support of the proposition that equity will intervene, if the case is sufficient, to prevent the common law rule of estoppel by deed from operating.
In light of my views expressed already, the variation was not intended to operate independently of the mortgage. I agree with the trial judge that the respondents were not estopped from arguing that the mortgage secured no money.
Was the counter-claim wrongfully dismissed?
Next I consider the counter-claim submission. The trial judge explained her reasons for dismissing the counter-claim as follows:
It was submitted on behalf of Mr and Mrs Vouzas that in the absence of an enforceable agreement entered into by them to repay moneys advanced to them or an agreement in writing to answer for the debts of another, then Sibonna’s counterclaim against them, for payment of a debt due, must fail. I accept that submission.[31]
[31]Reasons [125].
Critically, the trial judge found that the variation did not stand alone to create a different basis for liability under the mortgage. In other words, the variation was only operative to the extent that it constituted a separate credit contract or related guarantee. Her Honour held that the variation did not constitute such a credit contract, since it was not an agreement in which the appellant provided credit to the Vouzas’. Rather the trial judge held that the variation simply recorded the appellant’s agreement to increase the amount of the principal sum and extend the date for repayment of moneys if they had been advanced to the respondents.[32]
[32]Reasons [100].
The appellant submitted that her Honour erroneously dismissed the counter-claim as the covenant in the variation created an enforceable obligation to pay the sum of $1.3 million on or before 1 October 2009. It argued that even if this debt was not secured by the mortgage, it was enforceable as an unsecured debt. The appellant argued that the terms of the variation, whilst accepting the terms of the mortgage including cl 5.1, introduced a new obligation into the mortgage which cannot be ignored even if it is held to have been ineffective as creating secured money.
It follows from my reasons thus far that I reject the appellant’s submissions. Her Honour’s approach and analysis were entirely correct.
In any event, in order for there to be an enforceable guarantee the requirements of s 126 of the Instruments Act would have to be met.
The trial judge held that ‘[o]n a proper construction, the mortgage does not secure advances that were not paid to the mortgagors but rather to a third party unless there is a guarantee. The variation does not constitute a guarantee.’[33]
[33]Reasons [100].
This was the correct approach. The mortgage and variation did not satisfy the requirements of s 126 of the Instruments Act. They did not evidence in writing a special promise to answer for the debt, default or miscarriage of the respondents’ son. There was no sense in which the variation made the obligation of the respondents contingent upon the existence of a principal obligation owed by their son. There was no sense in which the respondents’ son must default in his obligation before the respondents may be called on to perform their obligation. In other words, there was no sense in which the respondents’ liability is co-extensive with that of their son.
In submissions on appeal however, the appellant contended that:
Her Honour failed to have regard to the appellant’s submission that, regardless of their effectiveness as securities, the Mortgage and (especially) the Variation of Mortgage amounted to an agreement or agreements on the respondents’ part to pay certain sums, and were enforceable as such. Whether this amounted to the respondents repaying moneys advanced “to them”, or amounted to an “agreement … to answer for the debts of another” , or neither of those things, was of no moment.
As I have said already, the variation does not give rise to an agreement that the respondents repay money advanced to them, nor to repay money advanced to their son under a guarantee. It remains to consider whether, on its proper construction, the obligation is akin to an indemnity, whereby the respondents took on a primary obligation to repay the $1.3 million advanced to their son by 1 October 2009.
One difficulty with this construction is that it does not appear that this argument was run at trial.
There are further difficulties. The concession by the appellant that it did not provide any advance to the respondents is relevant. In these circumstances, the variation would operate as an agreement by the respondents to pay loans made by the appellant to their son, yet these loans made to him are not mentioned in the mortgage or variation. Whilst compliance with s 126 of the Instruments Act may not be required in the case of an indemnity,[34] the fact that neither the mortgage nor the variation contains the identity of the principal debtor means this construction cannot be accepted. As observed, the principal sum was not defined. The debt which the respondents are allegedly indemnifying cannot be identified. In my view the third head of argument also fails.
[34]Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245, 254.
I would dismiss the appeal.
TATE JA:
I have had the benefit of reading the reasons of Warren CJ. I agree, for the reasons her Honour gives, that the appeal should be dismissed.
KYROU AJA:
I agree with Warren CJ.
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